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Full text of "International law situations with solutions and notes, 1936"

NAVAL WAR COLLEGE 



»■ 



International Law 



Situati 



ions 



WITH SOLUTIONS AND NOTES 



1936 



• 



NAVAL WAR COLLEGE 


International Law 


Situations 


WITH SOLUTIONS AND NOTES 


1936 


to Xe tUT4 v 

^edg* ****** 


p 

UNITED STATES 
GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1937 



For sale by the Superintendent of Documents. Washington, D. C. - - - - Price 15 cents 



PREFACE 

The annual publication of the Naval War College on 
international law for 1936 has been prepared, as for- 
merly since 1901, by George Grafton Wilson, LL. D., 
professor of international law at Harvard University. 
It covers topics upon which opinion has been changing, 
particularly since 1920, and which have been the subject 
of discussion by members of the senior class of 1937. 
The method followed has been to propound situations 
for consideration by members of the class and, after 
critical discussion, to organize the material for 
publication. 

While the conclusions reached as a result of the dis- 
cussions are in no way official, the notes afford a con- 
venient survey of material relating to the subjects 
presented, and they should be of value for purpose of 
reference. 

Criticism concerning the contents of this volume and 
suggestions regarding situations to be given considera- 
tion in subsequent volumes will be welcomed by the 
Xaval War College. 

C. P. Snyder, 
Rear Admiral, United States Navy, 

President, Naval War College. 

Mat 17, 1937. 

in 



CONTENTS 



Page 

Situation I. — Insurrection, belligerency, statehood 1-34 

Solution 1 

Notes: 

General 2 

State or government and international law 3 

Recognition of belligerency 3 

Admission of insurgency 5 

Insurgency 6 

United States v. Palmer, 1818 7 

Consul of Spain v. The Conception, 1819 7 

Effect of declaration of blockade against insur- 
gents 8 

Simultaneous recognition of de facto govern- 
ment 9 

Joint delay in recognition 11 

Collective recall of recognition 11 

Restriction on declaration of war 13 

Recognition in general 14 

Policy of the United States in 1 870 16 

Late nineteenth century policy 17 

Panama, 1903 17 

Seizure by insurgents 18 

Portugal, 1911 20 

Mexico, 1911 20 

Mexico, 1913, 1915 20 

Peru, 1914 21 

Protectorate over Egypt, 1919 21 

Recognition of World War States 22 

Sympathetic interest 22 

Civil strife and belligerent cruiser 24 

Poland, 1919 25 

Yugoslavia, 1919 26 

Aid to established state 26 

Closure of ports 28 

Soviet Governments and recognition 28 

Case of Oetjen v. Central Leather Co., 1918 29 

Revolution in Spain, 1936 30 

Resume" 32 

Solution 33 

v 



V1 CONTENTS 

Page 

Situation II. — Visit by and internment of aircraft 35-81 

Solution 36 

Notes: 

Changing rules 37 

Air power 38 

Aircraft 39 

Hague limitations on aerial warfare, 1899, 1907_ 39 

Rules on submarine 43 

Rules on aircraft 44 

Interference with neutral commerce, 1914 44 

World War opinions, 1914 46 

British interference with American merchant 

vessels, 1914 46 

British policy, 1914-16 48 

Search at sea, 1915-16 48 

Opinion of J. A. Hall 53 

National rules on diversion 54 

Case of the Joseph W. Fordney 55 

Resistance 57 

Resistance and armed merchant vessels of bellig- 
erents 58 

Holland's opinion, 1905 60 

American attitude, 1916 60 

Attempt to escape ■ 61 

Article 22, London Naval Treaty, 1930 62 

Discussion, The Hague, 1923 63 

Visit and search by aircraft 64 

Mr. Spaight on aircraft operations against mer- 
chant vessels 67 

Judge Moore on Hague Commission, 1922-23__ 68 

Aircraft and deviation 69 

Understood summons 70 

"Proceed as directed" 71 

American aircraft over Mexico, 1919 72 

Aircraft in distress, etc 73 

Aircraft and neutral jurisdiction 74 

Admiral Richmond on rules for aircraft 75 

Netherlands American Steam Navigation Co. v. 

H. M. Procurator General, 1925 76 

Radio 78 

Resume 79 

Sol ution 80 



CONTENTS VII 

Page 

Situation III.— Neutrality, 1914-36 82-135 

Conclusion 82 

Notes: 

Domestic neutrality regulation 82 

Attitude of the United States 83 

Accepted restrictions 84 

Proclamation of neutrality, United States, 1914_ 85 

Opinions on neutrality 90 

Changing neutrality policy 92 

Neutrality between Bolivia and Paraguay 94 

National and international neutrality laws 98 

Act of Congress, March 14, 1912__ 99 

Neutrality and contraband, 1914 99 

Reply of Department of State on arms embargo- 100 

Restrictions on clearance 105 

German attitude on trade in arms, 1915 106 

Attitude of United States, August 1915 107 

Embargoes on arms in 1915 108 

Attitude on munitions sale, 1916 109 

Act of Congress, June 15, 1917 110 

Brussels protocol, 1908 111 

Convention of St. Germain-en-Laye, 1919 111 

Restriction on importation of arms and muni- 
tions, 1919 112 

Mandates and traffic in arms 113 

Convention of Geneva, June 17, 1925 113 

The United States and Chaco Arms Embargo, 

1934 114 

"At their own risk" 115 

Proclamation of the United States, February 29, 

1936 ' 117 

Department of State's position, 1935 120 

Travel in time of war 121 

Reply of the Department of State on loans 122 

Statement on loans in 1916 123 

Limitation of loans proposal, 1917 124 

Bonds, loans, etc., during the period of war 126 

Restrictions on travel of nationals 126 

Retaliation and neutral passengers 129 

Restriction on act of February 29, 1936 130 

Spanish attitude on nonintervention, 1936 132 

League of Nations discussion 133 

Resume 133 

Conclusion _* 135 

Index 137-144 



Situation I 

INSURRECTION, BELLIGERENCY, 
STATEHOOD 

There has been an insurrection in a part of state Y. 
The insurrectionists, known as the Yotists, have re- 
ceived unofficial aid and some sympathy from state X, 
and after a few weeks have been recognized by state 
X as state Yota. States A and B also recognize Yota, 
but state Y has not recognized Yota. 

(a) Yota subsequently declares war against state C. 

(1) How should naval and aircraft of Yota and of 
C be treated in state B and in state D? 

(2) What effect would the recognition of Yota as a 
state by Y have upon the treatment of naval and air- 
craft of Yota and of C ? 

(b) Before Yota is recognized by state Y, a cruiser 
of Yota captures a merchant vessel of D and is taking 
it to a prize court when a cruiser of state D, which is 
near, learns the facts. What action may the cruiser 
of state D legally take? 

(c) Before Yota is recognized by state Y, state E 
declares its ports open under the 24-hour rule, while 
Yota declares all its ports closed to vessels of war. 
What are the rights of vessels of war of E in the ports ? 

SOLUTION 

(a) 1. The naval air aircraft of Yota and of C are 
to be treated by states B and D as naval and aircraft 
of belligerents, though Yota would not be regarded as 
a state by state D. 

1 



2 INSURRECTION, BELLIGERENCY, STATEHOOD 

2. The recognition of Yota as a state by Y entitles 
the naval and air craft of Yota to the same treatment 
as the naval and air craft of state C in all neutral ports. 

(b) The cruiser of state D may, outside the jurisdic- 
tion of a foreign state, demand the release, and, if re- 
fused, use necessary force to secure the release of the 
merchant vessel of D. 

(c) State E, not having recognized the Yotists as a 
state, are not bound to respect the declaration of closure, 
though state E must take into consideration the risk 
involved in disregarding the declaration. 

N( >tes 

General. — That there is a right of revolution has in 
practice been accepted for many years. The older 
European states were particularly opposed to this doc- 
trine in the early nineteenth century, when they had 
American colonies, and established states usually looked 
upon revolutions with disfavor. Gradually it came to 
be admitted that there was a limit beyond which an 
established state should not be responsible for action of 
persons in armed organized revolt against its political 
authority, and these insurrectionists were not to be re- 
garded as pirates, even though parent states did some- 
times declare them to be pirates. Many modern states 
were obliged to look to successful revolutions as the 
ground upon which their existence rested. There are 
various reasons for accepting such an assertion. If the 
successful revolutionists were not admitted to have some 
status, many obligations which the revolutionists might 
have assumed would be empty. The established state 
could not be liable beyond the exercise of the force at 
its disposal. 

Just when a foreign state would decide that those 
admitted to be insurgents were beyond the control of 



STATE OR GOVERNMENT 3 

the established state and should receive recognition as 
belligerents was a political question for the foreign 
state, unless the parent state should earlier recognize 
belligerency by a resort to war or otherwise. Foreign 
states are not under obligation to suffer undue incon- 
venience in order that a weak established state may 
have an unlimited time to put down an uprising within 
its borders. Many questions arise as to the nature of 
rights and obligations of established states and insur- 
gents. 

State or government and international law. — The 
state or the government of a state may have many func- 
tions and attributes relating to internal and relating to 
external affairs. The internal affairs may rest upon 
constitutional law, while the external may be deter- 
mined by international law. 

A political entity, which by constitutional law of a 
state might have no existence, might become for inter- 
national law a matter of capital importance. The do- 
mestic and international legitimacy of the existence of 
a political entity may rest upon conditions of alto- 
gether different nature. The legitimacy of the existence 
of a political entity for international law may depend 
uptfn the action of one or more foreign states, and this 
action may be in contravention of the will of an estab- 
lished state from which the political entity may be 
separating. This is evident in many states of revolu- 
tionary origin. 

Recognition of belligerency. — The admission of insur- 
gency by the competent authorities of a foreign state 
may bring into operation certain domestic laws and cer- 
tain treaty obligations of that foreign state though no 
international status is accorded to the insurgents. The 
recognition of belligerency does, however, give an imme- 
diate parity in international military status to both 
parties to the conflict. This is a general parity of mili- 



4 INSURRECTION, BELLIGERENCY, STATEHOOD 

tary rights as regards all states when recognition is by 
the parent state, or as regards the recognizing state or 
states when the parent state has not recognized the insur- 
gents as belligerents. 

Recognition of belligerency is thus a formal act estab- 
lishing a status which changes the relations of all parties 
involved. When this change shall be made is usually a 
matter of policy and therefore a matter primarily con- 
cerning the political departments of the governments. 

It is true that in the case of the Three Friends the 
Court uses the word "recognition" both for political re- 
volt and for war. The court, however, does distinguish 
between political revolt and war and implies that the 
first may be a fact and the second a status, saying : 

"The distinction between recognition of belligerency and recog- 
nition of a condition of political revolt, between recognition of 
the existence of war in a material sense and of war in a legal 
sense, is sharply illustrated by the case before us. For here the 
political department has not recognized the existence of a de 
facto belligerent power engaged in hostility with Spain, but has 
recognized the existence of insurrectionary warfare prevailing 
before, at the time and since this forfeiture is alleged to have 
been incurred." (166 U. S. 1.) 

The President had in 1895 and in earlier messages 
stated the fact that "Cuba is again gravely disturbed" 
and that the people of the United States should take this 
fact into consideration in their actions. The Court main- 
tains that domestic laws in regard to neutrality may be- 
come operative without any status of belligerency, while 
the recognition of belligerency would bring into effect 
blockade, visit and search, contraband, and other inter- 
ference by the belligerent parties without claim for 
reparation or damages. By the recognition of belliger- 
ency, the status of all parties as far as the recognizing 
states are involved is changed and their relations are to a 
considerable degree a matter of concern for international 
law. 



ADMISSION OF INSURGENCY 5 

Admission of insurgency. — The words "admission" and 
"recognition" have often been used without distinction 
as applying to insurgency. On examination there seems 
to be a distinction which has been made in actual prac- 
tice. 

The fact of an insurrection is usually evident, and as 
such must be admitted by the parent state and by for- 
eign states. To this fact foreign states may have to 
accommodate themselves without implying anything as 
to the final issue or present nature of the fact. As was 
pointed out in the case of the "Salvador" in 1870 by the 
Judicial Committee of the Privy Council, a main point 
in a case involving insurrection is the factual one of the 
existence of an insurrection. The Judicial Committee 
found "there was an insurrection in the island of Cuba ; 
there were insurgents who had formed themselves into a 
body of people acting together, undertaking and con- 
ducting hostilities" (L. E. P. A. C. 1869-71, III, p. 218). 

It is not even essential that there be any formal gov- 
ernmental proclamation by any state of the existence of 
an insurrection. The domestic peace of a state is often 
disturbed without involving other states beyond pre- 
suming that they will govern their conduct accordingly. 
A foreign government may bring to the attention of its 
citizens or of some of its departments the fact of an 
insurrection. Such a notice may even be regarded by the 
courts as official for domestic purposes. This was men- 
tioned by the Supreme Court in the case of the Three 
Friends, in 1897, after President Cleveland had referred 
in his message of December 2, 1895, to an insurrection as 
existing in Cuba : 

"We are thus judicially informed of the existence of an actual 
conflict of arms in resistance of the authority of a government 
with which the United States are on terms of peace and amity, 
although acknowledgment of the insurgents as belligerents by the 
political department has not taken place." (166 U. S. 1.) 



Q [NSURREGTION, BELLIGERENCY, STATEHOOD 

In tins ease it was stated that a certain section of domes- 
tic law would be in effect and its operation would not 
"depend upon the recognition of belligerency." 

After such an admission by a foreign state, that state 
might be under obligation to accommodate its conduct to 
the facts, but it would not thereby grant to the parent 
state and to the insurgents parity of military rights. A 
foreign state may. without implying any judgment upon 
the issues or extent of the conflict, admit that there is a 
conflict and instruct those under its jurisdiction accord- 
ingly. The fact of an insurrection may bring into opera- 
tion domestic laws and these domestic laws of one state 
do not necessarily conform to the laws of other states. 

By treaty, however, a measure of uniformity may be 
envisaged. Since 1928 a Convention relating to the 
Duties and Rights of States in the Event of Civil Strife, 
(Habana, Feb. 20, 1928, 46 Stat. Pt. 2, 2749), to which 
the United States is a part}', has distinctly obligated the 
parties to the treaty to follow a line of conduct imply- 
ing the admission of a different status from that bind- 
ing in time of peace or when belligerency is recognized. 
This Convention is, at present, regional in its operation. 

Insurgency. — That there is a status of insurgency 
which does not involve the consequences of belligerency 
is now well established. The admission that such a status 
exists has been somewhat reluctantly made by European 
>tates. There was a fear in the early nineteenth century 
that such admission might be an encouragement to revo- 
lution. On the American continents most of the states 
were revolutionary in origin and some admission of the 
facts of the struggle and accommodation of action to the 
facts often became necessary prior to the recognition of 
belligerency. A foreign state might be deterred by polit- 
ical or other reasons from granting to insurgents the 
same war rights as those to which the parent state was 



PIRACY AND CIVIL WAR 7 

entitled yet the fact of armed conflict could not be denied. 
The parties engaged in the hostilities could not claim 
rights of belligerents until the parent state had recog- 
nized that a state of war existed, except as regards an 
individual state which had declared its neutrality. The 
parent state might regard a declaration of neutrality in 
advance of an act on its part equivalent to a declaration 
of war as an unfriendly act by the state making the neu- 
trality declaration, since so far as the conduct of hostili- 
ties is concerned the declaration places the parent state 
and the insurgents upon the same footing as belligerents. 
United States v. Palmer, 1818. — In a case involving 
questions in regard to piracy in connection with the civil 
war in Spanish-American areas, it was said by the 
Supreme Court in 1818 : 

"This court is further of opinion, that when a civil war rages in 
a foreign nation, one part of which separates itself from the old 
established government, and erects itself into a distinct govern- 
ment, the courts of the union must view such newly constituted 
government as it is viewed by the legislative and executive depart- 
ments of the government of the United States. If the government 
of the union remains neutral, but recognizes the existence of a 
civil war, the courts of the union cannot consider as criminal those 
acts of hostility, which war authorizes, and which the new gov- 
ernment may direct against its enemy. In general, the same tes 
timony which would be sufficient to prove that a vessel or a person 
is in the service of an acknowledged state, must be admitted to 
prove that a vessel or person is in the service of such newly erected 
government." (United States v. Palmer, 3 Wheaton, Supreme 
Court Reports, 610, 643.) 

Consul of Spain v. The Conception, 1819. — While the 
decision in this case was reversed in the case of The Con- 
ception (6 Wheaton [1821], 235), it was reversed on new 
evidence without which the decision would have been 
sustained. In the Circuit Court of South Carolina in 
1819 it was said : 

The indisputable fact known, to all the world, and recognized by 
our>>wn executive in many official communications, of the exist- 
ence of open, solemn war between Spain and an extensive and 
powerful colony, is enough to impose on us, as a nation, the duties 
of neutrality. The colony asserts, the social compact is violated 



g INSURRECTION, BELLIGERENCY, STATEHOOD 

by the parent state, and the state of dependence or allegiance no 
longer existing. On this question an appeal is made to the god of 
armies, and no inferior tribunal ought to interfere. The colony 
claims from us no acknowledgment of her independence ; she only 
demands of us to leave her in possession of what she can win by 
arms. Spain, unable to rescue by force, solicits our aid to seize, 
in violation of the rights of hospitality, the property that has 
been forced into our harbors ; our duty is to lend our aid to 
neither, but to leave them as we find them, rigidly adhering to the 
duties of neutrality. This is not a piratical capture, and there- 
fore not a case within the provisions of our treaty with Spain. It 
is a seizure in the exercise of the rights of war, not by one who 
wages war against the human race, but one who has singled out 
Spain for the sole antagonist. All seizures of property within our 
limits we are bound by that treaty to prevent, but the duty to 
restore is confined solely to the case of rescue from those whom 
we can recognize as pirates. In the case of Palmer and others, in 
the supreme court, the principles laid down by the chief justice 
excluded all idea that this was a piratical capture. It was then 
a seizure jure belli, and the rights of war are necessarily com- 
mensurate with the power of maintaining it openly and solemnly, 
more especially upon the high seas, the jurisdiction of which is 
not susceptible of that demarkation and appropriation which takes 
place on the land. This conflict has long been carried on between 
the colony and parent state. The event is at least doubtful. It is 
on both sides an assertion of a supposed existing right, and neither 
can claim, of a nation to whom their disputes are immaterial, any 
act of interference which may involve it in a contest with the 
victor. (Consul of Spain v. The Conception. [1819.] Fed. Case, 
No. 3137.) 

Effect of declaration of blockade against insurgents. — 
As was held in the Civil War in the United States so it 
has been held since : the declaration of a blockade against 
insurgents by an established state gives to the insurgents 
the status of belligerents. This question has been raised 
repeatedly, as by Spain, to which Great Britain gave 
reply in 1874 : 

"Earl Granville to Mr. Layard. 

"Foreign Office, February 13, 187 4. 

"Sir: By your telegrams of the 2d instant you informed me of 
the publication, in the Madrid Gazette, of a decree declaring a 
blockade of the northern coast of Spain from Cape Penas to 
Fuentarrabia, with the exception of the ports of Gijon, Santan- 
der, and San Sebastian, such blockade to commence on the 20th 
instant. 

"Her Majesty's government have taken this announcement into 
their serious consideration, and have consulted the law-officers 
of the Crown thereon. 



DE FACTO GOVERNMENT 9 

"They are advised that, assuming the blockade to be effective, 
they must recognize the fact that it exists de facto and de jure. 
The result, however, will be that the Carlists henceforth become 
belligerents. 

"Her Majesty's government presume that the parts of the coast 
to which the blockade is applied are in the hands of the Carlists, 
for the Madrid government cannot establish a municipal blockade 
of its own ports or coast, so as to entitle them to exercise «n the 
high seas belligerent rights against foreign vessels. 

"I have, therefore, to instruct you to warn the Spanish gov- 
ernment that the establishment of the proposed blockade must 
lead to the issue by Her Majesty's government of a proclamation 
of neutrality. 

"Your dispatches, No. 106, of the 2d, and No. 125, of the 6th 
instant, relative to the regulations under which the blockade, if 
established, is to be carried out, have been received. These regu- 
lations will be carefully considered by Her Majesty's govern- 
ment, and a further instruction will be sent to you with regard 
to them. 

"The substance of this instruction has been sent to you by 
telegraph this day. 

"I am, &c, 

GRANVILLE." 

(Foreign Relations, U. S., 1874, p. 551.) 

Simultaneous recognition of de facto government. — 
Insurrections or revolutions may for a time be success- 
ful and an established government may be overthrown. 
Whether the overthrow be permanent may be a matter 
of uncertainty, though in such cases the fact that the 
control of governmental affairs has passed from the 
former hands must be admitted in order that necessary 
relations may be maintained. This admission some- 
times takes the form of the recognition of the party in 
control as the government de facto without any neces- 
sary implication that further action will follow. When, 
however, several states simultaneously grant recognition 
de facto, it may be fairly presumed that this is prelimi- 
nary to complete recognition. 

A military coup d'etat was reported in Bolivia on 
July 12, 1920, and the junta taking over the government 
gave assurances that peace would be maintained, that the 
rights of foreigners would be respected and that treaty 
obligations would be observed. 

1820—37 2 



1Q INSURRECTION, BELLIGERENCY, STATEHOOD 

A dispatch of July 17, 1920, from the Secretary of 
State to the American Minister in Bolivia stated : 

'The Department desires j r ou to keep it fully and closely in- 
formed of all developments in the situation, particularly those 
affecting the foreign policy of the Government now in control. 
You are instructed to take no action which could be construed 
as constituting recognition of the Provisional Government by the 
Government of the United States." (Foreign Relations, U. S., 
1920., vol. I, p. 373.) 

On July 20, 1920, a telegram from the American Min- 
ister reported that : 

"Peru yesterday recognized new Government. Representatives 
here of all other countries unanimous in opinion that there should 
be no recognition now but unless something now unforeseen 
should occur in next few days provisional recognition of de facto 
Government with ample guarantees [to] foreigners and foreign 
interests pending holding of fair elections might be made. I 
feel that we should recognize the new Government as soon as 
possible but make it sufficiently provisional to provide for any 
changes which would be mainly in the personnel if at all." 
(Ibid., p. 374.) 

The Secretary of State had said on the same date : 

"The Department desires to impress upon you the necessity of 
exercising utmost discretion in communicating with revolutionary 
Government. Your dealing with Junta should be limited to 
entirely unofficial and informal intercourse, and you should con- 
fine your representations to questions affecting the interests of 
the United States and the security of American life and property, 
bearing in mind the fact that the Government of the United 
States has not as yet recognized the revolutionary Government 
as being even a de facto government." (Ibid., p. 374.) 

Paraguay recognized the new government July 30, 
1920. and the British Government planned to recognize 
the de facto government a week later unless the situation 
changed. Other states deemed it expedient to wait till 
after elections were held before taking action. 

There was correspondence of representatives of the 
United States and other states in regard to recognizing 
the de facto government simultaneously. Recognition 
of a government by concurrent action may avoid confu- 
sion in some cases and will usually strengthen the posi- 
tion of the government recognized. By previous under- 



COLLECTIVE ACTION H 

standing the new government of Bolivia was recognized 
by the United States, Argentina, Chile and Brazil at 
3 P. M., February 9, 1921. 

Simultaneous recognition of Paraguay took place on 
March 14, 1936. 

The American Charge d 'Affaires at La Paz on May 30, 
1936, extended recognition to the Government of Bolivia, 
and Argentina, Brazil, Chile, Peru, Uruguay, and other 
American republics took similar action at the same time. 

Joint delay in recognition. — In 1921, when affairs in 
Mexico were disturbed, there was much correspondence 
among foreign offices in regard to delaying recognition. 
The exchange of telegrams between the governments of 
the United States and of Belgium shows such delay : 

"Brussels, November 4, 1921, 4 P- m- 

[Received November 5, 1 : 45 p. m.] 

"48. Department's number 46, October 31, 1921. I have com- 
municated with Jaspar, who has agreed not to extend recognition 
to the Obregon Government until such time as Great Britain. 
France, ancfthe United States take such action. He states, how- 
ever, that on account of the importance of Belgian interests in 
Mexico, the Government of Belgium would not want to be placed 
in a position of being the last to extend recognition, and therefore 
asks that when the time comes for any action looking toward 
recognition, such action be taken simultaneously. Do you think 
that an arrangement along these lines, which would solve Jaspar's 
perplexities, would be agreeable to the Department? 

Whitlock" 

"Washington, November 9, 1921, 2 p. m. 

"47. Embassy's telegram number 48, November 4, 1921, 4 p. m. 
Inform the Minister of Foreign Affairs that we are highly pleased 
to learn that the Government of Belgium has agreed not to extend 
recognition to the Obregon Government until such time as Great 
Britain, France, and the United States take such action. You 
may give him assurance that when the time comes for any action 
looking toward recognition, this Government will be pleased to 
inform the Government of Belgium, to the end that such action 
be taken simultaneously." (Foreign Relations, U. S., 1921, vol. II, 
p. 438.) 

Collective recall of recognition. — During the unsettled 
state of affairs in Costa Rica in 1919 there were proposi- 
tions in regard to collective or joint action by the Central 



12 INSURRECTION, BELLIGERENCY, STATEHOOD 

American States. On July 7, 1919, the American Minis- 
ter to Nicaragua reported to the Department of State 
from Managua by telegram: 

"Nicaraguan Minister for Foreign Affairs informed me that he 
received a telegram from Salvadorean Minister for Foreign 
Affairs calling attention to the recent events that have taken 
place in Costa Rica and the gravity of the situation and the possi- 
bility of American intervention resulting therefrom, and the 
necessity of joint action of the Central American States to adopt 
some plan of action to bring about a solution of impending diffi- 
culties. Salvadorean Government requests the Nicaraguan Gov- 
ernment to offer such suggestions as it may judge most convenient 
and expedient. Nicaraguan Government replied to the effect that 
it approves important step taken by Salvadorean Government and 
suggests that it take up the question with all Central American 
States ; that the Nicaraguan Government adheres to the principles 
of the Washington convention of 1907 and therefore suggests that 
the respective Central American States proceed to recall their 
recognition of the Tinoco government ; this should be done within 
the next 30 days. This done it would place the several Govern- 
ments on an equal footing and then they could proceed to unite it 
formulating a plan of concerted action. 

Jefferson." 

(Foreign Relations, U. S., 1919, vol. I, p. 844.) 

A Senate resolution asked why "Costa Kica 1 , a bellig- 
erent with the Allies in the War just ended, was not 
permitted to sign the treaty of peace at Versailles." In 
a reply of August 16, 1919, the Secretary of State said : 

"In view of the fact that the Government of the United States 
has not recognized the existence in the Republic of Costa Rica 
of a de jure or even a legitimately de facto Government, but holds 
that only the people of Costa Rica can as a moral force set up 
in that country a government constitutional in character and duly 
sanctioned by law, it follows naturally that the Government of the 
United States could not recognize as legally existent any mani- 
festation of such a Government. 

"To declare war is one of the highest acts of sovereignty. The 
Government of Costa Rica being for the Government of the United 
States legally nonexistent, it follows so far as the Government 
of the United States is concerned, no state of war could exist 
between Costa Rica and the Imperial German Government. Obvi- 
ously there could be no question so far as this Government was 
concerned as to signing with Costa Rica the Treaty of Peace of 
Versailles. 

'Respectfully submitted, 

Robert Lansing." 
(Ibid., p. 853.) 



RESTRICTION ON DECLARATION OF WAR 13 

Restriction on declaration of war., — That a third state 
should interfere to prevent two other states from de- 
claring war would be unusual. In 1921 the relations of 
Panama and Costa Rica were severely strained in dis- 
pute over a boundary line. This line had already been 
twice submitted to arbitration, once to the French Gov- 
ernment (Loubet Award, Sept. 11, 1900, Foreign Rela- 
tions, U. S., 1910, p. 786), and once to the Chief Justice 
of the United States (White Award, Sept. 12, 1914, For- 
eign Relations, U. S., 1914, p. 1000). Both these awards 
gave rise to controversies, and Panama and Costa Rica 
resorted to hostile action. This led the Secretary of 
State to telegraph at midnight, March 2, 1921, to the 
American Minister at Panama as follows : 

"The Government of the United States has seen with the deep- 
est regret the hostilities which have taken place between the 
armed forces of Panama and Costa Rica, from which loss of life 
has resulted, and which have caused public sentiment in both 
countries to be inflamed to a dangerous degree. It will be evi- 
dent to the Government of Panama that this Government, by 
reason of its special interests in the Isthmus, could not but view 
with the gravest apprehension any developments which will dis- 
turb the peace and tranquillity of Central America. While the 
Government of the United States appreciates the assurances con- 
veyed through you by the Government of Panama, the Govern- 
ment of the United States feels that a declaration of war because 
of a controversy growing out of the inability of the Republics of 
Costa Rica and Panama to agree upon a solution of the boundary 
dispute, would be inadmissible. The dispute is one, as pointed 
out in the Department's February 28, 2 p. m., which has already 
been examined during a period of years in the most disinterested 
and judicial manner, and it cannot but be evident that the only 
lasting solution which can be found will be reached as the result 
of the friendly offices of an impartial party to the controversy 
and not by hostilities of the character which have already taken 
place, which tend only further to excite the passions of the unruly 
element in the populations of both Republics." (Foreign Rela- 
tions, U. S., 1921, vo. 1, p. 177.) 

A similar dispatch was sent to the American Charge 
in Costa Rica. 

Both Central American governments were advised to 
withdraw their troops to the status quo, Cerro Pando- 
Punta Burica line, pending a final settlement. The 



14 [XSURRECTION, BELLIGERENCY, STATEHOOD 

United States acting as mediator informed Panama that 
the American government regarded the Loubet award 
of territory on the Pacific to Costa Rica as just, and that 
under the treaty relations between the United States and 
Panama could not "permit a renewal of hostilities by 
Panama against Costa Rica by reason of Costa Rica's 
now taking peaceful possession of that territory" (Ibid, 
p. 226). Panama announced its intention to avoid giv- 
ing cause for friction in this matter. 

Recognition in general. — The term recognition is used 
in different senses. 

Few, if any. problems arise when the term is used to 
designate the act by Avhich one state takes notice of a 
change in another state, when the change is in 'accord 
with established or constitutional procedure. The suc- 
cession of hereditary rulers may involve recognition of a 
new person in the position of authority, but no change 
in any other respect. In a government such as that of 
the United States, presidents succeed one another in a 
constitutional manner and a form of recognition is given 
by foreign states to this fact without involving any 
change in the identity or responsibility of the state itself. 
It was said in the case of the Sapphire in 1871 : 

"The reigning sovereign represents the national sovereignty, and 
that sovereignty is continuous and perpetual resting in the proper 
successors of the sovereign for the time being.'* (11 Wallace. 
Supreme Court Reports, 164.) 

The recognition by a state of a new political entity 
which has been formed in accord with the will of the 
party or parties within whose jurisdiction the area and 
population formerly were is a matter of policy and can 
give no offense. This was the case in recognition of 
states set up under terms of the Treaty of Versailles in 
i920. Similarly recognition of a state by another state 
subsequent to recognition of the new political entity by 
the parent state, of which it had formerly been a part, 



TYPES OF RECOGNITION 15 

does not give rise to serious problems. The same ma} 7 
be said of recognition of a state formed by union of two 
or more states in accord with their own action. 

Problems of recognition have arisen most frequently 
in connection with the attempts of groups, varying in 
nature and objective, seeking to break off from an estab- 
lished state or to supplant an existing government. The 
policies of recognition in such cases have varied in dif- 
ferent states and at different times in the same state. 

The changes in governments in Central and South 
American states during the nineteenth and early twen- 
tieth centuries afford many examples of recognition. 

After the World War new problems arose in regard 
to recognition. These were numerous in the transition 
from the Russian Empire to the Union of Soviet So- 
cialist Republics. In the case of the United States of 
America, sixteen years elapsed before recognition on 
November 16, 1933; but Russia did not recognize the 
United States after the Declaration of Independence 
for a period of thirty-three years, till 1809. In each 
case there was an apparent dislike of the system of 
government that had been established. 

The failure of an established state to recognize by 
entering into diplomatic or other relations with a po- 
litical entity does not necessarily predicate anything as 
to its existence. 

The United States in the nineteenth century looked 
with favor upon the recognition of other American states 
setting up governments on a model similar to its own 
and favored complete separation from Europe. Recog- 
nition on the basis of de facto control of the political 
organization was common, particularly when this in- 
volved popular control. 

Later willingness of the new entity to meet its obliga- 
tions became a factor in granting recognition. 



IQ INSURRECTION, BELLIGERENCY, STATEHOOD 

As relations became more close, the question of the 
legitimate character of a new government, as well as 
probable stability, were important considerations. 

When a new state was set up by an international 
agreement of a general character, like some of the 
treaties of peace, recognition might follow without any 
implication as to the policy of the recognizing state. 

Recognition of a new state or new government which 
by revolution succeeds a prior state may merely be rec- 
ognition of an accomplished fact. 

The admission that an organized body of armed men 
are seeking a political end in an established state may 
be essential for the peaceful conduct of relations between 
the insurrectionists and outside states. This does not 
imply any recognition of a political status of the insur- 
rectionists but merely an accommodation to the facts. 

Policy of the United States in 1870. — On November 
16, 1870, the Spanish Cortes elected the Duke of Aosta 
King of Spain. In reporting this the American Min- 
ister stated that "The incidents of the session are not 
regarded as promising a tranquil reign nor even a peace- 
ful accession to the throne." Referring to this com- 
munication, Secretary Fish said, December 16, 1870 : 

"It has been the policy of the United States to recognize the 
governments de facto of the countries with which we hold dip- 
lomatic relations. Such was our course when the republic was 
established in France in 1848, and again in 1870, and in each 
case accepted by the French people. Such was our course in 
Mexico when the republic was maintained by the people of that 
country in spite of foreign efforts to establish a monarchy by 
military force. We have always accepted the general acqui- 
escence of the people in a political change of government as a 
conclusive evidence of the will of the nation. When, however, 
there has not been such acquiescence, and armed resistance has 
been shown to changes made or attempted to be made under the 
form of law, the United States have applied to other nations the 
rule that the organization which has possession of the national 
archives and of the traditions of government, and which has 
been inducted to power under the forms of law, must be pre- 
sumed to be the exponent of the desires of the people, until a 
rival political organization shall have established the contrary. 
Your course in the present case will be governed by this rule. 



NINETEENTH CENTURY POLICY 17 

"Should there be circumstances which lead you to doubt the 
propriety of recognizing the Duke of Aosta as King of Spain, it 
will be easy to communicate with the Department by telegraph 
and ask instructions. Should there be no such circumstances, 
the general policy of the United States, as well as their in- 
terests in the present relations with Spain, call for an early and 
cheerful recognition of the change which the nation has made." 
(Foreign Relations, U. S., 1871, p. 742.) 

Late nineteenth century policy. — The attitude of the 

United States in the late nineteenth century was shown 

in instructions to diplomatic representatives in South 

America. The Acting Secretary of State wrote to the 

Minister as follows : 

"Upon your return to your post, if you then ascertain that the 
provisional government of Bolivia being de facto administered 
by the junta according to regular methods, affording reasonable 
guarantees of stability and international responsibility, and 
without organized resistance, you will notify the junta that you 
are authorized by the President to enter into relations with 
the provisional government, and will notify the Department of 
your action in order that the President may make appropriate 
reply to the autograph letter addressed to him by the junta 
on the 26th of April last." (Foreign Relations, U. S., 1899, 
p. 107.) 

Secretary Hay instructed the Minister to the Domini- 
can Eepublic, October 19, 1899: 

Upon your being satisfied that the new government of Santo 
Domingo is in possession of the executive forces of the nation 
and administering the public affairs with due regard for the 
obligations of international law and treaties, you will enter into 
full relations with it." (Ibid, p. 249.) 

Panama, 1903. — A circular letter from the provisional 
government committee in Panama was received by the 
Consul General, November 5, 1903, 12 : 50 P. M., saying 
that the "Department of Panama withdraws from the 
Kepublic of the United States of Colombia and formed 
the Kepublic of Panama." 

Secretary of State Hay sent the following telegram 
to the Consul General at 12:51 P. M., November 6, 
1903: 

"The people of Panama have, by an apparently unanimous 
movement, dissolved their political connection with the Republic 
of Colombia and resumed their independence. When you are 



\g INSURRECTION, BELLIGERENCY, STATEHOOD 

satisfied that a de facto government, republican in form, and 
without substantial opposition from its own people, has been 
established in the State of Panama, you will enter into relations 
with it as the responsible government of the territory and look 
to it for all due action to protect the persons and property of 
citizens of the United States and to keep open the isthmian 
transit in accordance with the obligations of existing treaties 
governing the relation of the United States to that, territory. 

"Communicate above to Malmros, who will be governed ny 
those instructions in entering into relations with the local au- 
thorities."' (Foreign Relations, U. S., 1903, p. 233.) 

Seizure by insurgents. — Among the more firmly es- 
tablished states of the world there has been a growing 
tendency in the twentieth century to take a less liberal 
attitude toward insurgents endeavoring to overthrow or 
to supplant recognized states. Stability in governments 
has been regarded as an attribute to be favored, and 
frequent changes to be discouraged. 

Many treaties have provided that only established 
courts shall be competent to pass upon matters of prize. 

Seizure and detention by insurgents of vessels of 
states not recognizing the belligerency of the insurgents 
has been regarded as having no justification in law. 

The statement of Mr. Wharton, when Solicitor in 
1885, was detailed and covered the proposal of Colombia 
that insurgent vessels be treated as pirates: 

"Department of State. Law Bureau, 

Washington, D. C, May 18, 1885. 
■>\n: In my report of April 21, 1885, I stated as follows: 

'(1) When vessels belonging to citizens of the United States 
have been seized and are now navigated on the high seas by 
persons not representing any Government or belligerent power 
recognized by the United States, such vessels may be captured 
and rescued by their owners, or by United States cruisers act- 
ing for such owners; and all force which is necessary for such 
purposes may be used to make the capture effectual. 

"(2) The Government of the United States of Colombia is 
liable not only for any injury done by it or with its permission 
to citizens of the United States or their property, but for any 
such injury which by the exercise of reasonable care it could 
have averted : and it is also liable for damage done to such 
vessels when by reasonable care it would have averted such 
damage. 

"This report was approved by the Secretary, and the company 
was duly informed thereof May 16, 1885. I have now before me. 



INSURGENTS NOT PIRATES \Q 

under date of May 18, instant, a second application from the 
company, stating the unlawful seizure of two additional vessels 
by the insurgents by whom the seizure noticed in the prior re- 
port was made. I beg now to report that on this state of facts 
these steamers may be retaken by United States men-of-war and 
restored to their owners on the same principles as sustained the 
conclusion given to this effect in my prior report. Under all the 
circumstances of the case I now respectfully submit the follow- 
ing directions be given by the Secretary : 

''First. That an instruction be sent to the United States min- 
ister at Bogata containing this and the prior report above 
mentioned. 

"Second. That the papers in this case be immediately for- 
warded to the Secretary of the Navy, with the request that the 
vessels thus unlawfully seized and now possessed by the in- 
surgents be retaken when on the high seas by any force the 
United States may be able to use for that purpose. 

"In closing this report I beg to call attention to the follow- 
ing paragraph at the end of the recent dispatch from this De- 
partment as to the status on the high seas of vessels owned by 
the insurgents in question : 

" 'Secondly. The Government of the United States cannot re- 
gard as piratical vessels manned by parties in arms against the 
Government of the United States of Colombia, when such ves- 
sels are passing to and from ports held by such insurgents, 
or even when attacking ports in the possession of the National 
Government. In the late civil war the United States at an 
early period of the struggle surrendered the position that those 
manning the Confederate cruisers were pirates under inter- 
national law. The United States of Colombia cannot, sooner or 
later, do otherwise than accept the same view. But, however 
this may be, no neutral power can acquiesce in the position now 
taken by the Colombian Government. Whatever may be the 
demerits of the vessels in the power of the insurgents, or what- 
ever may be the status of those manning them under the mu- 
nicipal law of Colombia, if they be brought by the act of the 
National Government within the operation of that law, there 
can be no question that such vessels, when engaged as above 
stated, are not, by the law of nations, pirates ; nor can they be 
regarded as pirates by the United States.' 

"It will be seen, therefore, that the crews manning these ves- 
sels cannot be regarded by this Government as pirates. But 
while this is the case, and while it may be conceded that vessels 
seized by them on the high seas are seized under claim of right, 
yet, vessels belonging to citizens of the United States so seized 
by them may be rescued by our cruisers acting for the owners 
of such vessels in the same way that we could reclaim vessels 
derelict on the high seas. 

"Respectfully submitted. 

Francis Wharton, Solicitor." 
(Foreign Relations, U. S., 1885, p. 212.) 



20 INSURRECTION, BELLIGERENCY, STATEHOOD 

Portugal, 1911. — In a telegram from the Secretary of 
State to the Charge d'Affaires in Lisbon, June 6, 1911. 
it was stated : 

"So soon as the Constituent Assembly, which meets on the 
19th instant, shall have expressed the voice of the people and 
settled upon the form of government to be adopted by Portugal, 
you are instructed to inform the minister for foreign affairs 
of its official recognition by the Government of the United States 
of America. You will be prepared to do this if possible the same 
day that the Constituent Assembly takes definite and final 
action." (Foreign Relations, U. S., 1911, p. 690.) 

Mexico, 1911. — In discussion of troubles in Mexico in 
the early second decade of the twentieth century, ques- 
tions arose in regard to the nature of certain actions of 
armed bodies of men. Of these acts Secretary Knox, on 
June 17, 1911, said: 

"Without desiring to enter into any discussion or controversy 
with your excellency regarding the status of persons who take 
up arms and make war under the circumstances recited in your 
note now under acknowledgment, I beg to suggest for your ex- 
cellency's consideration that the movement in Lower California 
appears to be the result of the activities of a Mexican political 
party ; that it is reported that the avowed object of this Mexican 
party is the throwing off of Mexican authority and the estab- 
lishment of a socialistic republic in Lower California ; and 
finally that the subversion of one form of government and the 
establishment of another has, upon this hemisphere, been uni- 
formly regarded as a political movement entirely irrespective of 
the propriety or justice of the cause espoused." (Foreign Rela- 
tions, U. S., 1911, p. 500.) 

Mexico, 1913, 1915.— On February 28, 1913, explana- 
tions of the attitude of the United States toward recog- 
nition in Mexico were communicated to the American 
Ambassador : 

"The Government of the United States is in de facto relations 
for the purpose of transacting all business with those in de facto 
control, who are the only effective authority in evidence. 
Whether the recent resignations under duress and the subsequent 
proceedings of the Mexican Congress suffice under the Mexican 
law to clothe the present regime with such de jure status as 
attached to the interim government of De la Barra is a question 
into which the Government of the United States is not now 
obliged to enter. 

'A distinction may be drawn between de facto relations with 
a de facto government and formal recognition of such gov- 



REVOLUTION AND RECOGNITION 21 

eminent, just as the same distinction may be drawn between 
de facto relations with and formal recognition of a normal and 
permanent Government. Formal recognition would in either 
case require some formal act of recognition, as, for example, the 
formal reply to a note announcing the new government or the 
receiving or accrediting of an ambassador. Any such formal act 
of recognition is to be avoided just at the present. In the mean- 
time this Government is considering the question in the light of 
the usual tests applied to such cases, important among which are 
the question of the degree to which the population of Mexico 
acquiesce in and assent to the new regime and the question of 
disposition and ability to protect foreigners and their interests 
and to respond to all international obligations." (Foreign Rela- 
tions, Ibid., U. S., 1913, p. 748.) 

The Secretary of State made it generally known on 
October 19, 1915, that General Carranza had been recog- 
nized as the Chief Executive of the de facto Government 
of Mexico, as follows : 

"The Ambassadors of Brazil, Chile and Argentina, and the 
Ministers of Bolivia, Uruguay and Guatemala, who have been in 
conference with me in regard to the recognition of a government 
in Mexico, will, under instructions from their several Govern- 
ments, recognize today the de facto Government of Mexico of 
which General Venustiano Carranza is the Chief Executive." 
(IMd., 1915, p. 771.) 

The Secretary of State on the same day made known 
that the United States would accredit a diplomatic rep- 
resentative to the de facto government. 

Peru, 1914. — A revolution in Peru, February 4, 1914, 
removed the President from office and placed executive 
authority in the hands of a Provisional Junta. A tele- 
gram from the Secretary of State to the American Min- 
ister on February 12, 1914, was as follows : 

"The Junta created by the Congress being in uncontested exer- 
cise of executive power and such exercise being freely acquiesced 
in by the people, you are instructed to recognize the Junta as a 
Provisional Government pending the establishment of a permanent 
executive." 

"Bbyan." 

(IMd., 1914, p. 1063.) 

Protectorate over Egypt, 1919. — In reply to a letter of 
Senator Owen, the Secretary of State said on December 
16,1919: 



22 INSURRECTION, BELLIGERENCY, STATEHOOD 

sir: I have the honor to acknowledge the receipt of your 
letter of November 29th last, in which your inquire as to the 
effect of this Government's recognition of the so-called protec- 
torate proclaimed by Great Britain over Egypt on December IS. 
1914. 

"In reply I beg to state that the Department does not under- 
stand that Egypt was, prior to the British proclamation of De- 
cember IS. 1914, in possession of full independent sovereign rights. 

"The effect of this Government's qualified recognition of April, 
1919, was to acknowledge with the reservation set forth at that 
time only such control of Egyptian affairs as had been set forth 
in the notice of the British Government transmitted to the De- 
partment on December 18, 1914, a copy of which is enclosed. 

"It is assumed that it is the purpose of Great Britain to carry 
out the assurances given by King George the Fifth of England to 
the late Sultan of Egypt as published in the London Times of 
December 21, 1914. 

"I have etc. 

Robert Lapsing." 

(Ibid., 1919, vol. II, p. 209.) 

Recognition of World War states. — The recognition 
of states set up as a result of the World War is upon a 
basis wholly unlike that involved in recognition of a 
political unity based upon insurrection or belligerency. 
The new states set up by the Treaty of Versailles were 
given place in the family of nations when the provisions 
of the treaty came into effect and the responsibilities of 
state existence were embodied in a responsible govern- 
ment. 

The creation of some of these states was due to action 
external to the area upon which the physical conditions 
of state existence rested and the political organization 
was externally determined for the area. An insurrection, 
however, has its origin within an existing state and in 
opposition to its control. The parent state may be re- 
luctant to admit the existence of a new state in either 
case. 

Sympathetic interest. — Just how far a favorable atti- 
tude of one state toward a party opposed to another 
established state may be made known is a matter of dif- 
ference of opinion and may depend upon the strength and 
influence of the respective parties. 



SYMPATHETIC INTEREST 23 

For sometime previous to January 1913, there had been 
disturbed conditions in the Dominican Republic. On 
January 15, 1913, the American Minister reported to the 
Secretary of State : 

"President Nouel advised me this morning of a plot to gain 
possession of the fort here by prominent Horacista generals. 
Horacio Vasquez himself denounced the plot and offered to place 
himself and some of his followers in the tort to maintain order. 

"The Archbishop [President Nouel] has for some time been 
urged arbitrarily to abolish the present Congress and make him- 
self dictator. He has absolutely refused and is thinking of con- 
voking Congress in extraordinary session to consider constitutional 
reforms and other matters. 

"He expresses himself as despondent over the probabilities of 
success in his efforts for good government unless the Govern- 
ment of the United States takes an active part in controlling elec- 
tions and the establishment of a government expressing the will 
of the people. He therefore requests me to obtain from you if 
possible a statement that can be made public as to the necessity 
of such a step on our part if the disorders of the past should tend 
to recur. 

Rtjssell " 

(Foreign Relations, U. S. 1913, p. 418.) 

The Secretary of State replied : 

"Department of State, 
''Washington, January 22, 1913. 

"The following statement may be given to President Nouel as a 
message from me, to be made public if he sees fit : 

" 'The most sympathetic interest is felt by the President and 
Government of the United States in your unselfish and patriotic- 
efforts to maintain lawful and orderly government and to intro- 
duce needful reforms, thus assuring to the Dominican nation the 
blessings of prosperity and peace. The President and Government 
of the United States sincerely wish that your patient endeavors 
may so succeed as to exclude the possibility of a recurrence of 
such disorders as have afflicted the Dominican people. Those dis- 
orders would by their recurrence make more onerous the duty of 
the United States under its conventional and moral obligations 
never to be indifferent to the peace and order of the Dominican 
Republic.' 

"You will do everything in your power to hold up the hands of 
the President, Archbishop Nouel, and to impress him with the 
necessity of patiently continuing in office. It would be well to 
advert in your conversations to the fact that under the present 
electoral law it is apparently almost impossible to accomplish 
much in the direction of free elections, however willing the Gov- 
ernment of the United States might be to lend its aid ; and that as 
a prerequisite to free elections it would seem indispensable to pro- 
vide some form of previous registration and some form of voting 



24 INSURRECTION, BELLIGERENCY, STATEHOOD 

that would prevent fraud. You might also suggest in informal 
conversation that besides the electoral law other reforms seem to 
the Department to be urgently needed, and that these might pos- 
sibly be accomplished without reform of the Constitution. For 
instance, reform of the laws relating to provincial and communal 
governments, the law of conscription (so as to provide for an 
annual enlistment by lot instead of at the will of local military 
chiefs), and the creation of a right to question arrest by means of 
habeas corpus or other such proceedings. 

"You might also point out to the President how much easier it 
would be for the United States to lend its aid if necessary to 
assist in the conduct of free and orderly elections if such reforms 
were realized. 

Knox." 

(Ibid, p. 419.) 

Under date of September 12, 1913, Secretary Bryan set 
forth his policy under the Convention of 1907 : 

"Firm in its intention to cooperate with the legally constituted 
Government in order that revolutionary activity may cease, the 
Department of State makes known to the revolutionists and those 
who foment revolutions the following: 

"Under the Convention of 1907, the Dominican Republic cannot 
increase its debt without the consent of the United States of 
America, and this Government will not consent that the Domini- 
can Government increase its debts for the purpose of paying rev- 
olutionary expenses and claims. Moreover, this administration 
would look with disfavor on any administrative act that would 
have for its object increase of the taxes, thereby imposing a bur- 
den upon the people, for the purpose of satisfying revolutionists. 
And should the revolution succeed, this Government, in view of 
the President's declaration of policy, would withhold recognition 
of the de facto government, and consequently withhold the por- 
tion of the customs collections belonging to Santo Domingo as long 
as an unrecognized de facto government should exist." (Ibid, 
p. 427.) 

Civil strife and belligerent cruiser. — In 1915 while 
Liberia was neutral, a British cruiser, the Highflyer, 
reported to the President of Liberia that it had come to 
Monrovia to offer assistance in civil disturbances then 
prevailing. An American vessel of war had been re- 
quested by Liberia and the vessel had been sent. 

On October 19, 1915, the American Charge at Monrovia 
reported : 

"The British High-flyer arrived Monrovia yesterday. Informed 
that Commander states to President he was ordered here by Brit- 
ish Government to offer Liberian Government assistance in Kru 



FOREIGN ASSISTANCE 25 

disturbances until arrival Chester. Liberian Government, having 
appealed to the Government of the United States for aid, prefers 
not to avail itself of British assistance except so advised by the 
Government of the United States. Disturbances unabated but 
measures already taken deemed sufficient to hold situation until 
Chester arrives November 1. Liberian Government awaits De- 
partment's advice before answering Commander." (Foreign 
Relations, U. S., 1915, p. 629.) 

The Secretary of State then communicated with the 

American Ambassador at London, who immediately 

replied : 

"Department of State, 
Washington, October 20, 1915. 
"2312. Legation, Monrovia, advises that British cruiser High- 
flyer arrived Monrovia October 18. Commander informs President 
of Liberia that he was ordered there to offer assistance in quelling 
uprising of native Krus until arrival of American naval steamship 
Chester due about November 1. Department informed measures 
already adopted deemed sufficient to hold disturbances in check 
until arrival Chester and Liberian Government, while deeply 
appreciative courteous offer, feels that its position of neutrality 
would be violated by Highflyer remaining in Liberian water more 
than twenty-four hours. Take case up immediately with British 
Government. Cable reply. Department has communicated orally 
with British Embassy here. 

Lansing." 

"American Embassy, 
London, October 21, 1915. 
"3070. Your 2312, October 20. The British Government has tel- 
egraphed its Consul General at Monrovia to instruct the com- 
mander of the Highflyer to depart immediately unless disorder 
demands its presence. 

American Ambassador." 
(Ibid., p. 630.) 

Poland, 1919. — On January 22, 1919, the American 
Commission to Negotiate Peace sent to the Acting Secre- 
tary of State the following in regard to the Provisional 
Polish Government: 

"Acting under direction from the President, I have sent the 
following telegram to Mr. Paderewski which gives full recognition 
to the Provisional Polish Government. In view of the necessity 
of immediate action I did not send the communication through the 
Department as I would normally do. 

"Following is the message: 

" 'The President of the United States directs me to extend to 
you as Prime Minister and Secretary for Foreign Affairs of the 
1820—37 3 



25 INSURRECTION, BELLIGERENCY, STATEHOOD 

Provisional Polish Government his sincere wishes for your success 
in the high office which you have assumed and his earnest hope 
that the Government of which you are a part will bring prosperity 
to the Republic of Poland. 

" 'It is my privilege to extend to you at this time my personal 
greetings and officially to assure you that it will be a source of 
gratification to enter into official relations with you at the earliest 
opportunity. To render to your country such aid as is possible 
at this time as it enters upon a ne\# cycle of independent life, will 
be in full accord with that spirit of friendliness which has in the 
past animated the American people in their relations with your 
countrymen.'" (Foreign Relations, U. S., 1919, vol. II, p. 741.) 

Yugoslavia, 1919. — The American Commission to Ne- 
gotiate Peace communicated the following to the Acting 
Secretary of State on February 6, 1919 : 

"The Secretary of State will give out on February 7th the 
following statement in regard to the union of the Jugo Slav 
peoples, which you may give out to the press immediately : 

" 'On May 29, 1918, the Government of the United States ex- 
pressed its sympathy for the nationalistic aspirations of the Jugo 
Slav race and on June 28 declared that all branches of the Slavish 
race should be completely freed from German and Austrian rule. 
After having achieved their freedom from foreign oppression the 
Jugo Slav [s] formerly under Austro-Hungarian rule on various 
occasions expressed the desire to unite with the Kingdom of 
Servia. The Servian Government on its part has publicly and 
officially accepted the Union of the Serb, Croat and Slovene 
peoples. The Government of the United States, therefore, wel- 
comes the union while recognizing that the final settlement of 
territorial frontiers must be left to the Peace Conference for 
determination according to desires of the peoples concerned.' " 
(Ibid., p. 899.) 

The designation "Yugoslavia" became official in prefer- 
ence to "Kingdom of Serbs, Croats and Slovenes" by 
decree of October 3, 1929. 

Aid to established state. — Aid may be of various de- 
scriptions and for differing reasons. States already 
established usually wish to maintain the status quo. 
Sometimes there may be economic or other reasons for 
such a wish. Of course, if one state is in debt to the 
nationals of another state, the second state will be inter- 
ested in the maintenance of the economic stability of the 
debtor state. 



QUESTION OF DIRECT AID 27 

Sometimes a friendly attitude may be interpreted to 
imply more than had been originally intended. 

In a somewhat involved statement of the Nicaraguan 
Minister to the Secretary of State of the United States, 
August 24, 1921, it was said : 

"The Government of Nicaragua placing confidence in the loan 
contracts made sometime ago with the banking concerns of Brown 
Brothers and Company and J. & W. Seligman and Company of 
New York, with the friendly assistance of the Government of the 
United States, under which contracts the collection of the customs 
duties of the Republic was turned oyer to a Receiver General 
appointed by the Government of Nicaragua and nominated by 
the Government of the United States through which contracts 
and through the financial plan which was set up in Nicaragua in 
accord with the Government of the United States, for the purpose 
of placing its public finances upon a substantial basis and thus 
promoting its progress and prosperity, for which purpose its 
general estimates were also kept within the amounts that were 
indispensable for the conduct of the Government, aiming to carry 
out the objects that have been aimed at and relying at the same 
time on the declarations of the Department of State that it would 
not brook any armed intervention against the Government of 
Nicaragua that would unavoidably be attended with the conse- 
quence of throwing its budget out of balance and making it 
impossible to meet its obligations, for which Your Excellency's 
Government stands as the friendly mediator, the Government of 
Nicaragua has omitted for eight years to keep its war stores on 
the proper footing and being at this juncture without available 
funds that would provide these without a very serious upset in 
the discharge of its obligations, my Government wishes to be 
supplied by Your Excellency's Government from the stores left 
over from the world war and to be paid for according to such 
arrangements as may be agreed to, the implements that may not 
be in use and hereinbelow described : 

Five thousand rifles. 

Three million cartridges for rifles. 

25 machine guns. 

250 thousand rounds for machine guns. 

2 military aeroplanes, with their regulation supply of ammuni- 
tion and indispensable spare parts." (Foreign Relations, 1921, 
vol. II, p. 565. ) 

When the Secretary of War raised with the Secretary 
of State the question of general policy of the sale of arms, 
the Secretary of State replied that each request for the 
purchase of arms should be considered separately and 
according to its particular merits : 



28 INSURRECTION, BELLIGERENCY, STATEHOOD 

'With regard to the particular case under discussion, I am 
inclined to think that the sale of the arms requested by Nicaragua 
would be desirable from the point of view of this Department, in 
view of our special interest in the maintenance of stable govern- 
ment in that country, and in view of our participation in the 
supervision of the financial affairs of the Republic. I am informed 
that Nicaragua has not at the present time sufficient war material 
to deal effectively with revolutionary bands which have been oper- 
ating in the northern part of the Republic, and I consider it very 
desirable that the Government should be placed in a position 
where it will be able to maintain order." (Ibid., p. 569.) 

Closure of ports. — An established state may close its 
ports in time of war to vessels of war of the belligerents 
or it may prescribe the conditions of entrance and so- 
journ. In absence of proclamation the 24-hour rule of 
sojourn generally prevails. 

The Institute of International Law in the session of 
1910 stated that a neutral state is free to close or to open 
its ports to vessels of war of the belligerents engaged in 
the contest. 

During the World War neutral states closed their ports 
within a given area to all vessels of war, closed some 
ports as war ports or naval areas, closed many ports ex- 
cept during specified hours, regulated or forbade the 
entrance of certain classes of vessels, and made other 
regulations. 

The principle that a neutral state may regulate or 
prohibit the use of its ports by vessels of war seems to be 
generally accepted. 

Soviet governments and recognition. — After the abdi- 
cation of Czar Nicholas II, March 15, 1917, a provisional 
government was established with a provisional ministry 
headed by Kerensky. The United States through its 
ambassador formally recognized this new government on 
March 22, 1917. 

The Bolsheviki overthrew this new government in 
November. The aim of the Bolsheviki was to set up a 
dictatorship of the proletariat involving a complete so- 
cial and economic revolution with the abolition of private 



RECENT CASES 29 

property and repudiation of prior international obliga- 
tions. 

Partly from domestic party political pressure, Great 
Britain (February 1), Italy (February 7), and France 
(October 28) recognized the Union of Soviet Socialist 
Eepublics in 1924. Some neighboring states had pre- 
viously recognized the U. S. S. R. The Ambassador of 
the Provisional Government of Eussia remained in 
Washington in that capacity till the middle of 1922. 

The method of recognition of the Union of Soviet 
Socialist Republics varied. Great Britain, France, Nor- 
way, Sweden, and Denmark recognized by formal notes. 
Germany, Austria, Italy, Japan, and other states made 
treaties or established diplomatic relations. 

Case of Oetjen v. Central Leather Co., 1918. — The 
Supreme Court of the United States on March 11, 1918, 
said, when the question of the status of a revolutionary 
government was involved : 

"It is also the result of the interpretation by this court of the 
principles of international law that when a government which 
originates in revolution or revolt is recognized by the political 
department of our government as the de jure government of the 
country in which it is established, such recognition is retroactive 
in effect and validates all the actions and conduct of the govern- 
ment so recognized from the commencement of its existence. 
Williams v. Bruffy, 96 U. S. 176, 186; Underhill v. Hernandez, 
168 U. S. 250, 253. See s. c. 65 Fed. Rep. 577. 

"To these principles we must add that: 'Every sovereign State 
is bound to respect the independence of every other sovereign 
State, and the courts of one country will not sit in judgment on 
the acts of the government of another done within its own terri- 
tory. Redress of grievances by reason of such acts must be ob- 
tained through the means open to be availed of by sovereign 
powers as between themselves.' Underhill v. Hernandez, 168 
U. S. 250, 253 ; American Banana Co. v. United Fruit Co., 213 
U. S. 347. 

"Applying these principles of law to the case at bar, we have a 
duly commissioned military commander of what must be accepted 
as the legitimate government of Mexico, in the progress of a 
revolution, and when conducting active independent operations, 
seizing and selling in Mexico, as a military contribution, the 
property in controversy, at the time owned and in the possession 
of a citizen of Mexico, the assignor of the plaintiff in error. 
Plainly this was the action, in Mexico, of the legitimate Mexican 



30 INSURRECTION, BELLIGERENCY, STATEHOOD 

government when dealing with a Mexican citizen, and, as we have 
seen, for the soundest reasons, and upon repeated decision of 
this court such action is not subject to reexamination and modi- 
fication by the courts of this country. 

"The principle that the conduct of one independent government 
cannot be successfully questioned in the courts of another is as 
applicable to a case involving the title to property brought within 
the custody of a court, such as we have here, as it was held to be 
to the cases cited, in which claims for damages were based upon 
acts done in a foreign country, for it rests at last upon the highest 
considerations of international comity and expediency. To permit 
the validity of the acts of one sovereign State to be reexamined 
and perhaps condemned by the courts of another wouid very cer- 
tainly 'imperil' the amicable relations between governments and 
vex the peace of nations.'" (Oetjen v. Central Leather Co., 246 
U. S. 297.) 

This principle has been reaffirmed in other American 
cases and also in cases before the English Courts. 

In the case of Princess Paley Olga v. W^isz in 1929, 
Scrutton, L. J., said : 

"The United States, situate in the neighbourhood of South and 
Central American Republics, where the life of any Government is 
precarious and its death rarely by natural" causes, frequently 
found in its territory property seized by a revolutionary force 
which ultimately succeeded in establishing itself in power and 
there sold the goods it had seized to persons who exported them 
to the United States, where they were claimed by their original 
owners. In Oetjen v. Central Leather Co. (2) these facts occurred 
with reference to a seizure in Mexico of property of a Mexican 
citizen which when sold came into the United States, and in 
Ricaud v. American Metal Co. (3) they occurred again with re- 
spect to the property of a citizen of the United States." ([1929] 
1 K. B., 718.) 

Revolution in Spain, 1936. — During the period of civil 
strife in Spain many problems arose in regard to the 
treatment of foreign property. In an instruction of the 
Department of State of the United States delivered to 
the Spanish Government on August 5, 1936. it was stated 
in behalf of the United States that: 

"This Government cannot admit that private property, whether 
in the hands of American nationals or abandoned by them tem- 
porarily because of conditions over which they have no control, 
may be interfered with with impunity or denied the protection to 
which it is entitled under international law. This Government 
must, of course, look to the Government of Spain for the protec- 



REVOLUTION IN SPAIN, 1936 31 

tion of such property and for indemnification for any delinquency 
in this respect. 

"In the event of requisition for the necessities of war or other- 
wise of American property this Government must insist that 
provision be made for prompt and full compensation to the 
owners." (Department of State. Press Release. Vol. XV, p. 
131.) 

When it was reported on August 30 that an aircraft 
had dropped bombs near the United States destroyer 
Kane, the Secretary of State on the same day in a state- 
ment said : 

'"Since both the Government forces and the opposing forces in 
Spain, in the friendliest spirit, have made every possible effort 
to avoid injury to American nationals and American property, 
it can only be assumed that the attack on the United States 
destroyer Kane was due to its identity having been mistaken by 
a plane of one faction for a vessel of the other. 

"Because of this friendly attitude and the absence of any 
motive whatsoever to attack an American vessel, it is not con- 
ceivable that either a Spanish Government plane or an insurgent 
plane would knowingly make attack upon an American naval 
vessel. The Secretary of State, at the direction of the President, 
immediately brought this incident to the attention of the Spanish 
Government, through the American Embassy at Madrid, and to 
General Francisco Franco, informally through the American con- 
sul at Seville, with the request that both sides issue instructions 
in the strongest terms, as the American Government feels con- 
fident they will desire to do, to prevent another incident of this 
character, it being well known in every quarter that the sole 
purpose of the presence of American naval vessels about the 
Spanish coast is to afford facilities for the removal of American 
nationals from Spain." (Ibid., p. 193.) 

The Secretary of State also instructed the American 
Embassy that : 

"Since the plane making the attack was unidentified the Presi- 
dent has directed that this incident be brought to the attention 
of the Spanish Government, through you and informally, with no 
intention as to recognition, to the attention of General Franco 
through the American Consul at Seville, with the request that 
both sides issue instructions in the strongest terms, as the Ameri- 
can Government feels confident they will desire to do, to prevent 
another incident of this character. 

"Take up this matter immediately with the Spanish Govern- 
ment in the sense of the foregoing, and endeavor to obtain a 
categorical statement as to whether the plane making this attack 
was a Government plane, and urge and insist upon definite assur- 
ance that appropriate instructions will immediately be issued to 



32 INSURRECTION, BELLIGERENCY, STATEHOOD 

the Government armed forces. Telegraph immediately and fully 
results of your representations." (Ibid., p. 202.) 

Resume. — In the statement of Situation I states X, 
A and B have recognized the insurrectionists against 
state Y, the Yotists, as state Yota. State X had pre- 
viously given unofficial aid and shown sympathy for the 
Yotists. Other states than X, A and B, have not recog- 
nized the Yotists as a state, though the insurgency of 
the Yotists is admitted. 

The exact time at which a body of insurgents becomes 
a state before the parent state has recognized them as 
such is not settled. If the parent state grants recogni- 
tion, the sovereignty of the parent state terminates at 
the time of the grant and the insurrectionists, so fa as 
'the parent state is concerned, become independent. The 
responsibility of the parent state for the acts of the 
insurrectionists terminates with this recognition. For 
foreign states granting the insurrectionists recognition 
as a state, the date would be determined by that of 
recognition. 

States A, B, and X, therefore, cannot hold state Y 
responsible for any acts of the recognized state Yota, 
and Yota may carry on war under the accepted rules so 
far as states A, B, and X are concerned and the aircraft 
of Yota would after declaration of war be treated 
according to the rules of war and neutrality. 

It is generally accepted that a declaration of war by 
a state creates a state of war as between it and the party 
against which the war has been declared. The parent 
state in time of insurrection is also under obligation to 
respect the laws of war. Prior to the recognition of the 
belligerenc}' or statehood of insurgents by the parent 
state, non-recognizing states though admitting the fact 
of insurrection and accommodating themselves thereto 
might be regarded as assuming an unfriendly attitude 
toward the parent state if they accorded to the insur- 



SOLUTION 33 

gents the full rights of belligerents. It would, there- 
fore, become a question of policy as to what attitude a 
state might take toward an insurgent party not recog- 
nized by it or the parent state as a belligerent or as a 
state. The fact that three states have recognized in- 
surgents as a state prior to recognition by the parent 
state puts other states under no obligation to treat the 
insurgents as belligerents or as a state. The fact, that 
the party admitted by all states other than three to be 
insurgents issues a declaration of war against a non- 
recognizing state, does not change the legal relation- 
ships of other non-recognizing states. To grant any 
ofcfcer conclusion would be to encourage insurrections 
and declarations of war by parties not considered as 
having attained responsible political status. There 
would be no obligation upon non-recognizing states to 
submit to seizure of its merchant vessels by unrecog- 
nized belligerents, nor would the non-recognizing states, 
even if themselves at war, be under obligations to sub- 
mit to restrictions in the use of ports not imposed by 
established states, though there might be risk when in- 
surgents declare war and are able by force to maintain 
the declaration which has been published. If the ports 
are those of a recognized state, the regulations of that 
state prevail. 

SOLUTION 

(a) 1. The naval and aircraft of Yota and of C are 
to be treated by states B and D as naval and aircraft 
of belligerents, though Yota would not be regarded as 
a state by state D. 

2. The recognition of Yota as a state by Y entitles the 
naval and air craft of Yota to the same treatment as 
the naval and aircraft of state C in all neutral ports. 

(b) The cruiser of state D may, outside the jurisdic- 



34 INSURRECTION, BELLIGERENCY, STATEHOOD 

tion of a foreign state, demand and use necessary force 
to rescue the merchant vessel of D. 

(c) State E, not having recognized the Yotists as a 
state, are not bound to respect the declaration of closure, 
though state E must take into consideration the risk 
involved in disregarding the declaration. 



Situation II 

VISIT BY AND INTERNMENT OF 
AIRCRAFT 

States X and Y are at war. Other states are neutral. 

(a) The Yaga, a cruiser of state Y, launches a plane, 
the Ya-10, which locates a merchant vessel of state X, 
the Xala, on the high seas and by radio orders the Xala 
to proceed to the Yaga. The Xala gives no evidence of 
receiving the message. 

1. The Xala starts zigzagging in the opposite direc- 
tion. 

2. The Xala stops and remains stopped. 

3. The Xala apparently knows that a cruiser of X is 
approaching, and the cruiser can be seen from the 
Ya-10. 

What should be the action of the Ya-10, if each of the 
above supposed conditions arise? 

4. Would the same action be taken under identical 
conditions in the case of the Nela, a merchant vessel 
of neutral state N ? 

(b) What should be the action of Ya-10, if the same 
orders had been in a message dropped on the deck and 
picked up by an officer of the respective merchant 
vessels ? 

(c) A carrier-based plane, Pa-11, of state Y is en- 
gaged in operations against state X. 

1. The Pa^-11 is pursued by an aircraft of state X 
and is flying within three miles of state K. The air- 
craft of state X is over the high sea. State K has pro- 
hibited the flying of belligerent aircraft within its juris- 

35 



35 VISIT BY AND INTERNMENT OF AIRCRAFT 

diction, and a patrol vessel and an aircraft of state K 
are near. 

2. The Pa-11 enters port N of state O in order to take 
fuel from a naval tanker of state Y. 

3. The Pa-11 enters port P of state K and alights on 
the Yema, an aircraft carrier, which entered port P two 
hours earlier and from which the Pa-11 had flown three 
hours before the Yema entered the territorial waters of 
state K. 

What action may the neutral authorities lawfully 
take? 

SOLUTION 

(a) 1. The Ya-10 should not use force against the 
Xala till certain that the Xala has received and under- 
stood the summons. When certain that summons has 
been received and is understood, the Ya-10 may use force 
sufficient only to bring the Xala to the Yaga under 
escort, or in case of persistent or active resistance the 
Ya-10 may sink the Xala, after assuring the safety of 
passengers, crew, and papers. 

2. The Ya-10 should not use force against the Xala 
til] certain that the Xala has received and understood the 
summons. When certain that summons has been re- 
ceived and is understood, the Ya-10 may use force suf- 
ficient only to bring the Xala to the Yaga under escort, 
or in case of persistent or active resistance the Ya-10 may 
sink the Xala, after assuring the safety of passengers, 
crew, and papers. 

3. The Ya-10 should not use force against the Xala 
till certain that the Xala has received and understood 
the summons. When certain that summons has been 
received and is understood the Ya-10 may use force suf- 
ficient only to bring the Xala to the Yaga under 
escort. If the Ya-10 decides not to incur risk from the 



MODIFICATION OF RULES 37 

approaching cruiser of X, the Ya-10 may take no fur- 
ther action in regard to the Xala. 

4. If a merchant vessel of neutral state N, the Nela, 
should be summoned by the Ya-10 under conditions iden- 
tical to (1), (2). and (3) above, the same action may be 
taken. 

(b) The commander of the Ya-10 being already cer- 
tain that the summons is received, should also be certain 
that it is understood, when he may proceed as in (1), 
(2), (3), and (4) above. 

(c) 1. State K should use due diligence to intern the 
Pa-11, an aircraft of state Y. 

2. State O should use due diligence to intern the Pa-11, 
an aircraft of state Y, and if the tanker of state Y has 
furnished fuel to the Pa-11, should intern the tanker. 

3. State R should request the Yema to turn over the 
Pa-11 for internment and if the request is not granted, 
should use due diligence to intern the Yema with the 
Pa-11 on board. 

NOTES 

Changing rules. — New methods of warfare introduce 
new problems. It is not usually the case that the rules 
for the use of new methods are adopted in advance. It 
also requires some knowledge of the manner in which the 
new method works before suitable rules may be devised. 

In spite of the novelty of a new instrument of war, the 
principles of its use may be well established. Many of 
the principles embodied in "Lieber's Code" (General 
Orders No. 100, Instructions for the Government of 
Armies of the United States in the Field, 1863,) are 
illustrative of rules previously existing, which in the 
form given by Lieber are, with few modifications, con- 
tinuing to the present day. The principles of the law 
of maritime war stated by Lord Stowell early in the 
nineteenth century were regarded as binding in courts of 



38 VISIT BY AND INTERNMENT OF AIRCRAFT 

the twentieth century. Some of these principles were 
disregarded during the World War, though often the 
arguments put forth for disregarding early precedents 
were not valid. 

Such principles as that the use of materials which 
cause unnecessary suffering should be prohibited were 
regarded as of universal acceptance. That poison should 
be prohibited was generally approved. The reason for 
prohibiting the discharge of projectiles from balloons in 
the late nineteenth century was largely lack of effective 
control in directing the movements of the aircraft. This 
would make the aim and course of the projectiles uncer- 
tain and create an undue risk for innocent population. 
As aircraft became perfected and their movements could 
be reasonably controlled, the restrictions upon their use 
correspondingly changed. 

The argument sometimes advanced to the effect that 
because an instrument of war is w T eak in respect to de- 
fense, it is entitled to special consideration either from 
the enemy or from a neutral, certainly has not received 
much support. War is a contention of strength and if 
either belligerent uses instruments which are weak, not 
self-sufficient, or to which the belligerent cannot furnish 
adequate support, such instrument is not entitled to ex- 
ceptional consideration from the neutral, and will not 
receive it from the opposing belligerent. 

Air power. — As there is great difference of opinion 
as to "war as an instrument of national policy", so there 
is wide difference as to the use of an air force in war. 
Certainly the use of the air has modified the conduct 
of war, even though opinion is not uniform as to what 
extent and in what respects modification has taken place 
and must take place. There is not agreement either as 
evidenced in discussion of or in appropriations for air 
equipment. 



REGULATIONS AND AIRCRAFT 39 

In some early wars land forces have been the main 
and determining factor, in others surface sea power, in 
the World War for a time subsurface sea force was 
threatening to dominate, and now air force is an incal- 
culable factor, but uncertainty as to the issue is often a 
stimulus to war. 

Gunpowder, torpedoes, mines, and submarines have 
at different periods in history been hailed as the last 
word in war, as aircraft are now considered by some. 

Thus far in history man as an animal of many inven- 
tions has shown a defensive mentality commensurate to 
the offensive, though sometimes a little delayed. 

Aircraft. — The introduction of aircraft as a means of 
warfare greatly modified the conduct of war upon the 
earth surface, on the water as well as on land. The 
earlier rules for warfare were concerned with surface 
combat. These rules could not in every instance be 
extended by analogy to aerial warfare, because the forms 
of warfare were not analogous. There was an attempt 
on the part of some writers to extend the three mile 
maritime jurisdiction doctrine to the superjacent air. 
In this attempt the early recognition of the fact that 
the law of gravity did not act horizontally and vertically 
in the same manner destroyed the analogy. Differences 
in speed and in other respects introduced other complica- 
tions in attempts to extend maritime and land rules to 
the air. Aircraft were coming more and more to be 
used in war : therefore rules had to be devised. 

The World War experiences and problems contributed 
valuable basal data for the determination of the nature 
of possible regulation of use of aircraft. The equip- 
ment of aircraft with radio introduced other problems. 

Hague limitations on aerial warfare, 1899, 1907. — At 
times there have been movements advocating the prohi- 
bition of aerial warfare or of the use of aircraft in war 
except for purposes of observation and signaling. 



40 VISIT BY AND INTERNMENT OF AIRCRAFT 

While other restrictions were advocated as aircraft be- 
came more perfected, there was little limitation upon the 
object for which the aircraft might be used, but some 
restriction upon the method of use was demanded in 
order that there might not be a risk disproportionate 
to the advantage. It might be reasonable to restrict the 
use of certain specified agencies in war for a time until 
their operation could be better known, and it might be 
essential to prohibit the use of other instrumentalities 
immediately. 

While the principle that the use in war of instru- 
ments or materials that would cause unnecessary suffer- 
ing should be prohibited might meet general support in 
an international conference, it is not certain that an 
instrument, which at a given date would be in the cate- 
gory of those which might cause unnecessary suffering, 
would- remain in that category. At the Hague Confer- 
ence of 1899 certain types of bullets were prohibited, and 
it was also proposed to prohibit the discharge of pro- 
jectiles from balloons. In discussing this proposal Cap- 
tain (General) Crozier, of the American Delegation, 
said: 

"The general spirit of the proposals that have received the 
favorable support of the subcommission is a spirit of tolerance 
with regard to methods tending to increase the efficacy of means 
of making war and a spirit of restriction with regard to methods 
which, without being necessary from the standpoint of efficiency, 
have seemed needlessly cruel. It has been decided not to impose 
any limit on the improvements of artillery, powders, explosive 
materials, muskets, while prohibiting the use of explosive or 
expanding bullets, discharging explosive material from balloons 
or by similar methods. 

"If we examine these decisions, it seems that, when we have 
not imposed the restriction,- it is the efficacy that we have wished 
to safeguard, even at the risk of increasing suffering, were that 
indispensable. 

"Of the two cases where restrictions have been imposed, the 
first, the prohibition of making use of certain classes of bullets, 
proceeds exclusively from a humanitarian sentiment, and it is 
therefore reasonable to suppose that the second has its basis in 
such a sentiment. Now, it seems to me difficult to justify by a 
humanitarian motive the prohibition of the use of balloons for 



DISCUSSION AT THE HAGUE 41 

the hurling of projectiles or other explosive materials. We are 
without experience in the use of arms whose employment we 
propose to prohibit forever. Granting that practical means of 
using balloons can be invented, who can say that such an inven- 
tion will not be of a kind to make its use possible at a critical 
point on the field of battle, at a critical moment of the conflict, 
under conditions so defined and concentrated that it would decide 
the victory and thus partake of the quality possessed by all per- 
fected arms of localizing at important points the destruction of 
life and property and of sparing the sufferings of all who are 
not at the precise spot where the result is decided. Such use 
tends to diminish the evils of war and to support the humani- 
tarian considerations which we have in view. 

"I do not know of machines thus efficient and thus humani- 
tarian, in the incomplete stage of development in which aerosta- 
tion now is ; but is it desirable to shut the door to their possible 
introduction among the permitted arms? In doing so, would we 
not be acting entirely in the dark, and would we not run the risk 
of error inherent in such a manner of procedure? The balloon, 
as we know it now, is not dirigible ; it can carry but little ; it is 
capable of hurling, only on points exactly determined and over 
which it may pass by chance, indecisive quantities of explosives, 
which would fall, like useless hailstones, on both combatants and 
noncombatants alike. Under such conditions it is entirely suit- 
able to forbid its use, but the prohibition should be temporary 
and not permanent. At a later stage of its development, if it be 
seen that its less desirable qualities still predominate, there will 
still be time to extend the prohibition ; at present let us confine 
our action within the limits of our knowledge. 

"That is why I have the honor to propose the substitution of 
the following text for the text already voted : 

" 'For a period of five years from the date of the signature of 
this act it is forbidden to employ balloons or other similar means 
not yet known for the purpose of discharging projectiles or ex- 
plosives.' " (Proceedings of the Hague Peace Conference, 1890. 
Carnegie Translation, vol. Ill, p. 354.) 

On July 29, 1899, a Declaration was signed to the 
following effect : 

"The Contracting Powers agree to prohibit, for a term of five 
years, the discharge of projectiles and explosives from balloons 
or by other new methods of a similar nature." (32 Stat. 1839.) 

By its provisions this Declaration would terminate on 

July 29, 1904. This was during the Russo-Japanese 

War. Both Russia and Japan observed the provisions of 

the Declaration, however, to the end of the war. When 

it was proposed at the Second Hague Conference in 1907 

to renew this declaration, M. Louis Renault, the able 

delegate from France, said: 

1820—37 4 



42 VISIT BY AND INTERNMENT OE AIRCRAFT 

"The method of discharging the projectiles makes little dif- 
ference. It is lawful to try to destroy an arsenal or barracks 
whether the projectiles used for this purpose comes from a can- 
non or from a balloon ; it is unlawful to try to destroy a hospital 
by either method. That, in our minds, is the essential idea to 
be considered. The problem of aerial navigation is progressing 
so rapidly that it is impossible to foresee what the future holds 
for us in this regard. One cannot, therefore, legislate with a 
thorough knowledge of the question. One cannot forbid in ad- 
vance the right to profit by new discoveries which would not in 
any way affect the more or less humanitarian character of war 
and which would permit a belligerent to take effective action 
against his adversary, while respecting the requirements of the 
Hague Regulations." (Proceedings of the Hague Peace Con- 
ference, 1907. Carnegie Translation, vol. Ill, p. 147.) 

At the Second Hague Peace Conference, 1907, it was 
also proposed by the Italian and Russian delegations to 
make restrictions requiring dirigibility of aircraft which 
might drop projectiles. The form was as follows : 

'Tt is forbidden to throw projectiles and explosives from 
balloons that are not dirigible and manned by a military crew. 

''Bombardment by military balloons is subject to the same re- 
strictions accepted for land and sea warfare, in so far as this 
is compatible with the new method of fighting." (Ibid., p. 28.) 

There was only about a two-third vote of the member- 
ship of the Conference in support of either proposal. 
It was also stated that 

"On account of the distinct character of its two articles, the 
German delegation asked that they be separated, observing, as 
regards the first, that it was possible to throw projectiles from 
nondirigible balloons, and further, that there was no connection 
between the power to direct balloons and that of throwing pro- 
jectiles from them." (Ibid.) 

In discussing the Italian-Russian proposal it was set 
forth that the 1899 Declaration in regard to discharge 
of projectiles from balloons reflected the uncertainty 
existing at the time in regard to the use of balloons and 
that with light and powerful motors in prospect in 1907 
it would be futile to try to limit the lawful use of air- 
craft. 

The Second Hague Peace Conference of 1907 pro- 
ed in its Final Act : 



RULES FOR SUBMARINES 43 

"The Contracting Powers agree to prohibit, for a period ex- 
tending to the close of the Third Peace Conference, the discharge 
of projectiles and explosives from balloons or by other new 
methods of a similar nature." 

The only change from the 1899 Declaration was in 
fixing a period to the close of the Third Peace Confer- 
ence which was projected for 1915, at which time the 
World War was in progress. As the Declaration was 
not- generally ratified, it has since 1907 received little 
consideration. 

Rule on submarines. — During the World War, 
1914—18, the submarine was for the first time extensively 
used. Claims were made that it should not be required 
to conform to rules long accepted for warfare upon the 
sea, that as it could not take on board the passengers 
and crew of a visited vessel, it might dispense with visit, 
and torpedo a vessel without even summoning the ves- 
sel. The structure of the submarine is relatively light 
and not suitable for defense against projectiles. The 
submarine is also relatively slow and relies upon its 
underwater protection for effectiveness. It is now 
agreed that the submarine does not for this reason have 
any special rights in war. The London Naval Treaty 
of 1930, Part IV, Article 22 provides : 

"The following are accepted as established rules of Inter- 
national Law : 

"(1) In their action with regard to merchant ships, sub- 
marines must conform to the rules of International Law to 
which surface vessels are subject. 

"(2) In particular, except in the case of persistent refusal to 
stop on being duly summoned, or of active resistance to visit or 
search, a warship, whether surface vessel or submarine, may not 
sink or render incapable of navigation a merchant vessel without 
having first placed passengers, crew and ship's papers in a place 
of safety. For this purpose the ship's boats are not regarded as 
a place of safety unless the safety of the passengers and crew is 
assured, in the existing sea and weather conditions, by the prox- 
imity of land, or the presence of another vessel which is in a 
position to take them on board." (46 Stat. (Pt. 2), 2858.) 

This principle Avas more widely accepted in 1936 as the 
French and the Italian Governments deposited their 



44 VISIT BY AND INTERNMENT OF AIRCRAFT 

ratifications of Part IV with the British Government on 
November 6, 1936. In a protocol of the same day, the 
states parties to Part IV, from that time, the United 
States, Australia. Canada, France, Great Britain and 
Northern Ireland, India, Irish Free State, Italy, Japan, 
New Zealand, and South Africa, requested the British 
Government to communicate the rules to all the Powers 
not signatory to the Treaty of London with an invitation 
that they accede to Part IV "definitely and without limit 
of time." 

Rules on aircraft. — Thus there have been from time to 
time suggestions that aircraft, because of the nature of 
their construction, the space in which they operate, their 
speed, and other considerations, be given special exemp- 
tions. For a time the doctrine of freedom of the air was 
a slogan meaning the freedom of all air. Then this free- 
dom was claimed by some for air above a certain zone in 
all areas. Now by many agreements it is conceded that 
freedom of the air does not extend outside the limits of 
the air above the high seas and some contend that as 
elevation enlarges the range of vision the jurisdiction of 
the coast state should be extended to a corresponding 
degree. 

There has been a claim that the speed of aircraft and 
their weakness should give to them special privileges in 
time of war. The aircraft gains from speed an advan- 
tage somewhat comparable to that which the submarine 
gains from its underwater movements. Under present 
development of aircraft, the taking on board of the pas- 
sengers and crew of a visited merchant vessel would be 
less feasible than for a submarine. The aircraft is de- 
pendent upon the supply of fuel at comparatively short 
intervals and fuel bases are of capital importance. 

Interference with neutral commerce, 1914,. — There was 
much correspondence upon the matter of interference 
with neutral commerce in the early days of the World 



DIVERSION OF SHIPPING 45 

War. There were many differences of opinion upon 
contraband, blockade, unneutral service, visit and search, 
capture, destruction, etc. 

Soon after the beginning of the war the diversion of 
ships and cargo became a subject of diplomatic notes. 
To a request of the American Secretary of State of 
August 13, 1914, the American Ambassador in Great 
Britain replied on August 18 : 

"Sir Edward Grey informs me that the British Government will 
consider claims of American shippers whose cargoes destined for 
ports of British enemies are diverted to British -ports and sold. 
If such claims for loss by such diversion be established, the 
British Government will in due time pay them." (Foreign Rela- 
tions, U. S., 1914, Supplement, p. 305.) 

During August and September 1914 there had been 
much correspondence on the diversion of American ship- 
ping to British ports, and after protests by the American 
Government as to delays of ships and cargoes the British 
Government proposed to do, and asserted that they 
were — 

"doing all in their power to ensure that innocent neutral cargo 
shall be restored to its owners with as little delay as possible, and 
that the unavoidable inconvenience to neutral merchants shall be 
minimized so far as possible." (Ibid., p. 316.) 

Mr. Van Dyke, the American Minister in The Nether- 
lands, sent a telegram, which was received in Washing- 
ton, October 2, 1914, as follows : 

"We desire to protest energetically against measures taken by 
belligerent governments regarding shipments consigned us from 
the United States which have resulted in the Holland-America 
Line refusing to accept cargo intended for us unless consigned 
to the Dutch Government. We feel that American houses are 
entitled to conduct their business direct with their branches with- 
out interference as long as the goods clearly bear the neutral 
origin, character, and destination and are transported to neutral 
destination by neutral carriers. We are willing to sign a decla- 
ration to the effect that we are the consignees of the respective 
goods ; that they are or will be sold to our customers in the 
Netherlands exclusively or for reexportation to such countries 
only as are not at war. This declaration should fully cover the 
requirements of all belligerents." (Ibid., p. 317.) 



45 VISIT BY AND INTERNMENT OF AIRCRAFT 

World War opinions. H>1' 4 . — As early as October 9. 
1914. the Acting Secretary of State of the United States 
gave a reply to a query regarding the destruction of ships 
of belligerents engaged in transportation of neutral 
goods between neutral ports: 

"The practice of nations in the past, stated generally, has been 
bo sink prizes of war taken on the seas if either the ship or any 
part of her cargo was neutral property only when military neces- 
sity made this course imperative. This practice has now been 
embodied, at least in part, in the rules on the subject laid down 
by the Declaration of London, which Germany appears to have 
adopted for her guidance in the present naval warfare, and on 
which she has presumably based her action in this instance. It 
is not to be presumed, however, that the German Government will 
refuse to grant indemnity for neutral property which has been lost 
in such manner and which would otherwise have been restored by 
a court of prize." (Foreign Relations. 1914, Supplement, p. 319.) 

In the case of the Glitra before the German prize court 
on July 30. 1915. it was said : 

"As regard the condition of naval warfare in particular there 
is no protection either general or specific afforded to neutral mer- 
chandise by article 3 of the Paris declaration against the acts 
of the belligerent party resulting from the circumstances of the 
war. Article 3 referred to above is intended to afford protec- 
tion against the prize law to which. up*.to the time of the Paris 
declaration, neutral merchandise in the enemy ship was ex- 
posed. Whatever the circumstances of the war demand, must 
be permitted to take place without regard to the fact that neu- 
tral merchandise is on board the ship. If, according to article 
2 of the Paris declaration, the neutral flag protects enemy mer- 
chandise, this does not mean that vice versa the enemy ship is 
to be protected by neutral merchandise, protected in the first 
place, perhaps only against destruction, but by the same token 
in innumerable cases against any exercise of the prize law." 

"As far as can be ascertained, no one has disputed this even 
down to the most recent time." (1922 Naval War College. Inter- 
national Law Decisions, p. 35.) 

British interference irith American merchant vessels. 
1914. — Toward the end of December 1914 the Govern- 
ment of the United States sent a long: note to the British 
Government stating its attitude on the conduct of British 
authorities toward American shipping. While assuring 
the British Government of its friendly spirit, the Ameri- 
can Government did not wish its silence on certain 



INTERFERENCE WITH SHIPPING, 1914 47 

British practices to be construed as acquiescence in an 
infringement upon neutral rights when American goods 
destined for neutral ports were taken into and long de- 
tained in British ports, even when the goods were des- 
tined to named persons in a state guaranteeing non- 
exportation of contraband. The American Government 
considered the interference with American commerce 
had been of a character "not justified by international 
law or required under the principles of self-preservation." 
The American note called attention to British incon- 
sistencies in the application of announced British poli- 
cies particularly as regards contraband. This note of 
December 26, 1914, further stated that : 

"The Government of the United States readily admits the full 
right of a belligerent to visit and search on the high seas the 
vessels of American citizens or other neutral vessels carrying 
American goods and to detain them when there is sufficient evi- 
dence to justify a belief that contraband articles are in their 
cargoes; but His Majesty's Government, judging by their own 
experience in the past, must realize that this Government can not 
without protest permit American ships or American cargoes to be 
taken into British ports and there detained for the purpose of 
searching generally for evidence of contraband, or upon presump- 
tion created by special municipal enactments which are clearly at 
variance with international law and practice. 

"This Government believes and earnestly hopes His Majesty's 
Government will come to the same belief, that a course of con- 
duct more in conformity with the rules of international usage, 
which Great Britain has strongly sanctioned for many years, will 
in the end better serve the interests of belligerents as well as those 
of neutrals. 

"Not only is the situation a critical one to the commercial inter- 
ests of the United States, but many of the great industries of this 
country are suffering because their products are denied long- 
established markets in European countries, which, though neu- 
tral, are contiguous to the nations at war. Producers and ex- 
porters, steamship and insurance companies are pressing, and not 
without reason, for relief from the menace to transatlantic trade 
which is gradually but surely destroying their business and 
threatening them with financial disaster. 

"The Government of the United States, still relying upon the 
deep sense of justice of the British nation, which has been so often 
manifested in the intercourse between the two countries during so 
many years of uninterrupted friendship, expresses confidently the 
hope that His Majesty's Government will realize the obstacles and 
difficulties which their present policy has placed in the way of 



48 VISIT BY AND INTERNMENT OF AIRCRAFT 

commerce between the United States and the neutral countries of 
Europe, and will instruct their officials to refrain from all unnec- 
essary interference with the freedom of trade between nations 
which are sufferers, though not participants, in the present con- 
flict; and will in their treatment of neutral ships and cargoes 
conform more closely to those rules governing the maritime rela- 
tions between belligerents and neutrals, which have received the 
sanction of the civilized world, and which Great Britain has, in 
other wars, so strongly and successfully advocated." (Foreign 
Relations, U. S„ 1914, Suppl., p. 374.) 

British policy, 19H-16. — Sir Edward Grey (later Vis- 
count Grey of Fallodon) carried on the negotiations in 
regard to contraband and other controversies arising with 
foreign states early in the World War. Such argumen- 
tative notes as that of December 26, 1914, sent by the 
American Government required reply, but the reply was 
not always in form of an adequate legal defense. Of 
some of this correspondence while Mr. Walter H. Page 
was American Ambassador, Sir Edward Grey said : 

"The Navy acted and the Foreign Office had to find the argu- 
ment to support the action ; it was anxious work. British action 
provoked American argument ; that was met by British counter- 
argument. British action preceded British argument ; the risk 
was that action might follow American argument. In all this 
Page's advice and suggestion were of the greatest value in warn- 
ing us when to be careful or encouraging us when we could safely 
be firm. 

"One incident in particular remains in my memory, Page came 
to see me at the Foreign Office one day and produced a long 
despatch from Washington contesting our claim to act as we were 
doing in stopping contraband going to neutral ports. 'I am in- 
structed,' he said, 'to read this despatch to you.' He read, and I 
listened. He then said : 'I have now read the despatch, but I do 
not agree with it ; let us consider how it should be answered !' On 
other occasions he would urge us to find means of avoiding provo- 
cation of American feeling; for instance, he urged us to find some 
way of acting other than by Orders in Council, which since 1812 
had had such odious associations for the United States. He knew 
that these were only a matter of form, and that there was nothing 
in them intrinsically offensive to the United States, but the name 
was hateful in America. Unfortunately Orders in Council were 
formalities essential to make our action legal in British Courts of 
Law and we could not do without them." (Grey of Fallodon, 
Twenty-five Years, vol. II, p. 160.) 

Search at sea, 1916-16. — After the receipt of several 
notes assuring the United States that the measures taken 



SEARCH AT SEA 49 

by the Allied Governments would not unjustifiably in- 
fringe upon neutral rights, the American Secretary of 
State sent to the American Ambassador in Great Britain 
a long communication on October 21, 1915, for presenta- 
tion to the British Secretary of State for Foreign Affairs. 
The note called attention to various vexatious interfer- 
ences with American commerce which the American Gov- 
ernment had expected would cease. Among the annoy- 
ances mentioned was delay of shipping without adequate 
grounds of suspicion. This note states : 

"(4) In regard to search at sea, an examination of the instruc- 
tions issued to naval commanders of the United States, Great 
Britain, Russia, Japan, Spain, Germany, and France from 1888 to 
the beginning of the present war shows that search in port was 
not contemplated by the Government of any of these countries. 
On the contrary, the context of the respective instructions shows 
that search at sea was the procedure expected to be followed by 
the commanders. All of these instructions impress upon the naval 
officers the necessity of acting with the utmost moderation — and 
in some cases commanders are specifically instructed — in exercis- 
ing the right of visit and search, to avoid undue deviation of the 
vessel from her course. 

'•(5) An examination of the opinions of the most eminent text 
writers on the laws of nations shows that they give practically no 
consideration to the question of search in port, outside of exami- 
nation in the course of regular prize-court proceedings. 

"(6) The assertion by His Majesty's Government that the po- 
sition of the United States in relation to search at sea is in- 
consistent with its practice during the American Civil War is 
based upon a misconception. Irregularities there may have been 
at the beginning of that war, but a careful search of the records 
of this Government as to the practices of its commanders shows 
conclusively that there were no instances when vessels were 
brought into port for search prior to instituting prize court 
proceedings, or that captures were made upon other grounds 
than, in the words of the American note of November 7, 1914, 
'evidence found on the ship under investigation and not upon 
circumstances ascertained from external sources.' A copy of 
the instruction issued to American naval officers on August 18, 
1862, for their guidance during the Civil War, is appended. 

"(7) The British contention that 'modern conditions' justify 
bringing vessels into port for search is based upon the size and 
seaworthiness of modern carriers of commerce and the difficulty 
of uncovering the real transaction in the intricate trade opera- 
tions of the present day. It is believed that commercial trans- 
actions of the present time, hampered as they are by censorship 
of telegraph and postal communications on the part of belliger- 
ents, are essentially no more complex and disguised than in the 



50 VISIT BY AND INTERNMENT OF AIRCRAFT 

wars of recent years, during which the practice of obtaining 
evidence in port to determine whether a vessel should be held 
for prize proceedings was not adopted. The effect of the size 
and seaworthiness of merchant vessels upon their search at sea 
has been submitted to a board of naval experts, which reports 
that— 

" 'At no period in history has it been considered necessary to 
remove every package of a ship's cargo to establish the character 
and nature of her trade or the service on which she is bound, 
nor is such removal necessary- * * * 

" "The facilities for boarding and inspection of modern ships 
are in fact greater than in former times: and no difference, so 
far as the necessities of the case are concerned, can be seen 
between the search of a ship of a thousand tons and one of 
twenty-thousand tons — except possibly a difference in time — for 
the purpose of establishing fully the character of her cargo and 
the nature of her service and destination. * * * This 
method would be a direct aid to the belligerents concerned in 
that it would release a belligerent vessel overhauling the neutral 
from its duty of search and set it free for further belligerent 
operations.' " * * * 

"(12) The further contention that the greatly increased im- 
ports of neutral countries, adjoining Great Britain's enemies, 
raise a presumption that certain commodities, such as cotton, 
rubber, and others more or less useful for military purposes, 
though destined for those countries, are intended for reexporta- 
tion to the belligerents who can not import them directly, and 
that this fact justifies the detention for the purpose of examina- 
tion of all vessels bound for the ports of those neutral countries, 
notwithstanding the fact that most of the articles of trade have 
been placed on the embargo lists of those countries, can not be 
accepted as laying down a just or legal rule of evidence. Such 
a presumption is too remote from the facts and offers too great 
opportunity for abuse by the belligerent, who could, if the rule 
were adopted, entirely ignore neutral rights on the high seas 
and prey with impunity upon neutral commerce. To such a 
rule of legal presumption this Government can not accede, as 
it is opposed to those fundamental principles of justice which 
are the foundation of the jurisprudence of the United States 
and Great Britain." * * * 

"(15) In view of these considerations, the United States, re- 
iterating its position in this matter, has no other course but to 
contest seizures of vessels at sea upon conjectural suspicion and 
the practice of bringing them into port for the purpose, by search 
or otherwise, of obtaining evidence, for the purpose of justifying 
prize proceedings, of the carriage of contraband or of breaches 
of the order in council of March 11. Relying upon the regard 
ef the British Government for the principles of justice so fre- 
quently and uniformly manifested prior to the present war, this 
Government anticipates that the British Government will in- 
struct their officers to refrain from these vexatious and illegal 
practices." (Foreign Relations. U. S.. 1915, Supplement, pp. 
570-81.) 



SEARCH AT SEA 51 

This was the championship of neutrality note, of 
which a paragraph at the end declares: 

"This task of championing the integrity of neutral rights, 
which have received the sanction of the civilized world, against 
the lawless conduct of belligerents arising out of the bitterness 
of the great conflict which is now wasting the countries of 
Europe, the United States unhesitatingly assumes, and to the 
accomplishment of that task it will devote its energies, exercising 
always that impartiality which from the outbreak of the war 
it has sought to exercise in its relations with the warring na- 
tions." (Ibid., p. 589.) 

At this time replies were long delayed to such pro- 
tests, and often conditions were much changed before 
replies were received. The British Ambassador in the 
United States transmitted the reply to the note of 
October 21, 1915, on April 24, 1916, after more than six 
months. This reply gave extended consideration to the 
matter of visit and search sur place : 

"5. When visit and search at sea are possible, and when a 
search can be made there which is sufficient to secure belligerent 
rights, it may be admitted that it would be an unreasonable 
hardship on merchant vessels to compel them to come into port, 
and it may well be believed that maritime nations have hesi- 
tated to modify the instructions to their naval officers that it is 
at sea that these operations should be carried out, and that 
undue deviation of the vessel from her course must be avoided. 
That, however, does not affect the fact that it would be im- 
possible under the conditions of modern w r arfare to confine the 
rights of visit and search to an examination of the ship at the 
place where she is encountered without surrendering a funda- 
mental belligerent right. 

"6. The effect of the size and seaworthiness of merchant ves- 
sels upon their search at sea is essentially a technical question, 
and accordingly His Majesty's Government have thought it well 
to submit the report of the board of naval experts, quoted by the 
United States Ambassador in paragraph 7 of this note, to Ad- 
miral Sir John Jellicoe for his observation. The unique ex- 
perience which this officer has gained as the result of more than 
18 months in command of the Grand Fleet renders his opinion 
of peculiar value. His report is as follows : 

" 'It is undoubtedly the case that the size of modern vessels is 
one of the factors w 7 hich renders search at sea far more difficult 
than in the days of smaller vessels. So far as I know, it has 
never been contended that it is necessary to remove every package 
of a ship's cargo to establish the character and nature of her 
trade, etc. ; but it must be obvious that the larger a vessel and 
the greater the amount of cargo, the more difficult does exam- 



52 VISIT BY AND INTERNMENT OF AIRCRAFT 

ination at sea become, because more packages must be removed. 

" 'This difficulty is much enhanced by the practice of concealing 
contraband in bales of hay and passengers' luggage, casks, etc., 
and this procedure, which has undoubtedly been carried out, neces- 
sitates the actual removal of a good deal of cargo for examination 
in suspected cases. This removal cannot be carried out at sea, 
except in the very finest weather. 

" 'Further, in a large ship the greater bulk of the cargo renders 
it easier to conceal contraband, especially such valuable metals as 
nickel, quantities of which can easily be stowed in places other 
than the holds of a large ship. 

" 'I entirely dispute the contention, therefore, advanced in the 
American note, that there is no difference between the search of 
a ship of 1,000 tons and one of 20,000 tons. I am sure that the 
fallacy of the statement must be apparent to anyone who has ever 
carried out such a search at sea. 

" 'There are other facts, however, which render it necessary to 
bring vessels into port for search. The most important is the 
manner in which those in command of German submarines, in 
entire disregard of international law and of their own prize regu- 
lations, attack and sink merchant vessels on the high seas, neutral 
as well as British, without visiting the ship and therefore without 
any examination of the cargo. This procedure renders it unsafe 
for a neutral vessel which is being examined by officers from a 
British ship to remain stopped on the high seas, and it is therefore 
in the interests of the neutrals themselves that the examination 
should be conducted in port." (Foreign Relations, U. S., 1916, 
Supplement, p. 369.) 

After a statement in regard to abuse of neutral rights 
by Germany, the note continues : 

"The French Ministry of Marine shares the views expressed by 
Sir J. Jellicoe on the question of search at sea, and has added the 
following statement : 

" 'Naval practice, as it formerly existed, consisting in searching 
ships on the high seas, a method handed down to us by the old 
Navy, is no longer adaptable to the conditions of navigation of the 
present day. Americans have anticipated its insufficiency and 
have foreseen the necessity of substituting some more effective 
method. In the Instructions issued by the American Navy De- 
partment, under date of June 20, 1898, to the cruisers of the United 
States, the following order is found (clause 13) : 

" 'If the latter (the ship's papers) show contraband of war, the 
ship should be seized; if not, she should be set free unless by 
reason of strong grounds for suspicion a further search should 
seem to be requisite.' 

"• Every method must be modified having regard to the modifica- 
tions of material which men have at their disposal, on condition 
that the method remains humane and civilised. 

1 'The French Admiralty considers that to-day a ship, in order 
to be searched, should be brought to a port whenever the state of 
the sea, the nature, weight, volume, and stowage of the suspect 



SEARCH IN PORT 53 

cargo, as well as the obscurity and lack of precision of the ship's 
papers, render search at sea practically impossible or dangerous 
for the ship searched. 

" 'On the other hand, when the contrary circumstances exist, the 
search should be made at sea. 

11 'Bringing the ship into port is also necessary and justified 
when, the neutral vessel having entered the zone or vicinity of 
hostilities, (1) it is a question, in the interests of the neutral ship 
herself, of avoiding for the latter a series of stoppages and succes- 
sive visits and of establishing once for all her innocent character 
and of permitting her thus to continue her voyage freely and 
without being molested ; and (2) the belligerent, within his rights 
of legitimate defence, is entitled to exercise special vigilance over 
unknown ships which circulate in these waters.' 

"The question of the locality of the search is, however, one of 
secondary importance. In view of His Majesty's Government the 
right of a belligerent to intercept contraband on its way to his 
enemy is fundamental and incontestable, and ought not to be 
restricted to intercepting contraband which happens to be accom- 
panied on board the ship by proof sufficient to condemn it. What 
is essential is to determine whether or not the goods were on 
their way to the enemy. If they were, a belligerent is entitled to 
detain them, and having regard to the nature of the struggle in 
which the Allies are engaged they are compelled to take the most 
effectual steps to exercise that right." (Ibid., p. 370. ) 

The practice of searching vessels in port continued. 

Opinion of J. A. Hall. — Mr. J. A. Hall, who, before 
the World War, published a book on the Law of Naval 
Warfare, issued a second edition after the war and after 
connection with the British Navy. The closing sentence 
of his preface reads : 

"Navies and armies have not ceased to be necessary with the 
passing of the Great War, and so long as that is the case a knowl- 
edge of international law remains of special importance to the 
Officers of that Service 'whereon, under the good providence of 
God, the wealth, safety, and strength of the kingdom chiefly de- 
pend.' " (Law of Naval Warfare, 2d ed., p. vii.) 

In discussing the right of visit and search and after he 
has referred to diversion for search in port, Mr. Hall 

says: 

"Apart altogether from the special circumstances of the Great 
War arising out of Germany's illegal practices at sea, the follow- 
ing permanent reasons for this development of the right seem to 
afford it full justification : 

"1. The ship's papers in these days, when telegraphs and other 
means of rapid communication are available for merchants, need 
afford no reliable indication of the destination of the cargo. 



54 VISIT KY AND INTERNMENT OF AIRCRAFT 

M 2. The destination of the vessel owing to railways and other 
modern means of land transport is no criterion of the destination 
of the cargo. 

"3. The ship's officers may be equally ignorant on this point. 

"4. Modern means of communication, while reducing the value 
of evidence from the ship, has enormously increased the powers of 
a belligerent government to obtain information from the vessel's 
port of departure and pass on instructions to its examining 
cruisers. 

"5. The size of modern merchant ships enables them to keep at 
sea when weather conditions make even visiting (hem impossible. 

"6. The necessary extension of contraband to cover articles of 
small bulk but of great value for war, together with the huge 
cargo capacity of modern ships, has made concealment easy and 
an adequate examination of such cargo at sea impossible." 
(Ibid., p. 206.) 

It is admitted that war will cause inconvenience to 
neutral commerce, but that the right of visit and search 
should not be abused. 

•'In the first place the spot selected for search must not involve 
an unreasonable deviation of the vessel from her voyage. In 
the second place, it seems perfectly clear that nothing in inter- 
national law can justify diversion merely in the hope of dis- 
covering by subsequent search evidence of contraband or other 
noxious trading ; there must be some substantial ground, no mat- 
ter from what source it is derived, for suspecting that this par- 
ticular vessel is engaged in such trade, although the evidence 
may not at the moment be sufficient to support a plea for con- 
demnation in the prize court." (Ibid., p. 267.) 

Xational rules on diversion. — The diversion of a mer- 
chant ship from its course has long been restricted and 
often specific rules were issued. 

The German Prize Ordinance of 1909 prescribed in 
regard to neutral ships : 

"81. The captain must as much as possible avoid diverting a 
ship under a neutral flag from her course during the visit and 
search ; he shall especially endeavor to cause the ship the least 
possible inconvenience, especially will he in no circumstances re- 
quire the master to come on board the man-of-war, or that a boat, 
men of the crew, the ship's papers, etc. be sent on board." 

"85. If the weather make boarding impossible, the captain will 
prescribe a given course to the ship, in case he has serious sus- 
picion of her and will follow himself, until it is possible to carry 
out the visit." 

"10. Should anything, for example, bad weather, prevent a 
bearding party from being sent on board, a suspect ship is to be 
brought into port without further procedure. 



CASE OF THE JOSEPH W. FORDNEY 55 

"Should it be necessary at the same time to declare such a 
ship as captured, she must be ordered to haul down her flag and 
to follow the war vessel." 

"11. It must be clearly stated in the Prize Report whether 
the ship has been captured or merely brought into port for 
search ; in the latter case the reason must be given, for example, 
whether search was impossible for military reasons or owing to 
the nature of the cargo, weather, etc." 

"91. If the making of the search is proved to be necessary, but 
at the time is not practicable to carry out, the ship will be 
searched later at a suitable place. If this causes serious disad- 
vantages to the ship to be searched, the captain will proceed to 
the provisional capture." 

The Japanese Regulations of 1904, in Article 51, said 

briefly : 

"In visiting or searching a vessel the captain of the man-of- 
war shall take care not to divert her from her original course 
more than necessary and as far as possible not to give her incon- 
venience." 

Case of the Joseph W. Fordney. — There were many 
cases of detention on grounds of doubtful legality during 
the World War, 1914-18. 

Protests by the Government of the United States were 
met by delays and by correspondence often confusing the 
issues. The delays and excuses in the case of the steamer 
Joseph W. Fordney led the American Secretary of State 
after long correspondence to say in a letter to the Ameri- 
can Ambassador in Great Britain on November 3, 1915 : 

"The note addressed to you by Foreign Office under date Octo- 
ber 6, 1915, confirms Department's original supposition seizure 
cargo steamer Joseph W. Fordney was an illegal act on part 
British authorities since goods were seized on suspicion and with- 
out probable cause. These goods were subject to seizure only if 
consigned to German Government or its armed forces. Depart- 
ment observes Foreign Office states that, as His Majesty's Govern- 
ment 'now' have reason to believe that the goods 'were for the 
enemy Government or its armed forces, proceedings for condem- 
nation are being taken on that ground.' In other words, it appears 
that approximately one half year after seizure goods British 
authorities believe they have such evidence as alone would have 
justified seizure this cargo. Department does not perceive the per- 
tinency to matter under discussion of statement to you by Foreign 
Office pointing out that when it was arranged that you should be 
informed regarding detention of ships, with an indication of the 
grounds of detention, it was emphasized that this undertaking 
would not be understood as debarring British Government from 



56 VISIT BY AND INTERNMENT OF AIRCRAFT 

raising additional grounds for proceeding against a cargo or ship 
in prize court. If adequate evidence warranting seizure goods was 
not disclosed by due examination of vessel at time of its seizure, 
there of course could be no lawful seizure of the cargo and, there- 
fore, no subsequent lawful prize court proceedings. 

"Communicate with Foreign Office in sense foregoing, and since 
it would appear from British Government's own statement cargo 
was illegally seized, you may renew your request for its release." 
(Foreign Relations, U. S., 1915, Supplement, p. 608.) 

After further correspondence and delays on April 13, 
1916, the Secretary of State sent another dispatch to the 
American Ambassador: 

"Representatives Atlantic Export Company, shippers of cargo 
on steamer Joseph W. Fordney, inform Department they have 
been advised by English lawyers that new order in council, March 
30 last, regarding conditional contraband is construed by British 
authorities as retroactive and will be applied to cargo of this ves- 
sel and in other American cases set for early trial. These repre- 
sentatives state that proceedings of this character would amount 
to denial justice in the case of this cargo. Department agrees 
with views of shippers as to unwarranted character these proceed- 
ings. Department has made known to British Government 
through you its views that if proper examination warranting the 
seizure of goods in question was not disclosed by proper examina- 
tion of vessel at the time its seizure, there could be no lawful 
seizure of the cargo and, therefore, no subsequent lawful prize 
court proceedings, and that seizure of a vessel and cargo can not 
be justified on the strength of evidence of illegal destination cargo 
discovered, as appears according to the British Government's 
statement to have been the case with reference to steamer Joseph 
W. Fordney, approximately one-half year after seizure took place. 
No reply justifying such a course has been made by British 
Government. 

"Communicate with Foreign Office in sense foregoing and say 
that this Government considers it is entitled to receive statement 
from British Government regarding their views as to how such 
evidence can warrant a seizure of this kind and prize court pro- 
ceedings in relation thereto." (Ibid., p. 363.) 

Not until May 9, 1916, did the Ambassador inform the 
Secretary of State that the Foreign Office stated that "the 
British Government must decline to enter into any discus- 
sion of points which are awaiting decision in a case pend- 
ing in the prize court." 

A long note from Sir Edward Grey was transmitted to 
the Secretary of State on April 24, 1916, in which the 
actions complained of by the United States were discussed 



RESISTANCE TO VISIT AND SEARCH 57 

and the course pursued by British authorities was 
defended. 

The cargo of the Joseph W. Fordney. "10 million 
pounds of feed and cake" recognized as conditional con- 
traband consigned to a neutral country was condemned 
as good and lawful prize. 

Resistance. — As visit and search in time of war is gen- 
erally regarded as the exercise of a legitimate war right, 
resistance to visit and search makes the merchant vessel 
liable to consequences. Naval regulations relating to 
resistance vary. An attempt to escape, as by flight or 
under cover of darkness, does not justify condemnation, 
but does render the ship suspect and liable to capture 
and bringing into port. Such force may be used as is 
necessary to bring the merchant vessel to, and this 
usually consists in firing a shot in advance of the vessel 
and across the bow. Forcible resistance makes the vessel 
liable to condemnation. The German Prize Code, 1916, 
Article 5, stated : 

"Care is to be taken in determining whether an attempt has 
been made to escape. 

"The commanding officer must : 

"(1) Make certain that the signals have been understood, espe- 
cially if there is another ship in the vicinity. 

"(2) In the case of merchant ships, any increase in speed is 
generally small, and barely distinguishable from any great dis- 
tance, as they in any case usually steam at full speed. 

"(3) Some companies have ordered their ships, in the event of 
their being held up, not to reverse the engines, but simply to stop 
and allow the ship to proceed until she has lost her way." (1925 
Naval War College. International Law Documents, p. 44.) 

In the German Prize Ordinance, September 30, 1909, 
it was explained that — 

"An attempt to escape renders the ship suspect and therefore 
justifies her being captured and brought into port without fur- 
ther procedure. If, however, the ship is not liable to confisca- 
tion on other ground — for example, on account of carrying contra- 
band or rendering assistance contrary to the laws of neutrality — 
she may not} be sunk, nor, if it is impossible to bring her into 
port, may any other disadvantages be imposed upon her by way 
of punishment." (Ibid., p. 44.) 

1820—37 5 



58 VISIT BY AND INTERNMENT OF AIRCRAFT 

The unratified Declaration of London, 1909, was con- 
sidered as reflecting the general opinion on the law at 
that period. Article 63 of the Declaration of London 
states : 

"Forcible resistance to the legitimate exercise of the right of 
stoppage, visit and search, and capture, involves in all cases the 
condemnation of the vessel. The cargo is liable to the same 
treatment which the cargo of an enemy vessel would undergo. 
Goods belonging to the master or owner of the vessel are re- 
garded as enemy goods." (1909 Naval War College, Interna- 
tional Law Topics, p. 145.) 

A provision to the above effect was in many national 
rules in 1914. 

The Spanish Instructions of 1898, after referring to 
hoisting the flag and firing a blank shot, show a con- 
siderate attitude toward the merchant vessel : 

"If the merchant vessel does not obey this first intimation, 
and either refuses to hoist her flag or does not lay to, a second 
gun will be fired, this time loaded, care being taken that the 
shot does not strike the vessel, though going sufficiently close 
to her bows for the vessel to be duly warned ; and if this second 
intimation be disregarded, a third shot will be fired at the vessel, 
so as to damage her, if possible, without sinking her. What- 
ever be the damage caused to the merchant vessel by this third 
shot, the commanding officer of the man-of-war or captain of 
the privateer can not be made responsible. 

"Nevertheless, in view of special circumstances, and in pro- 
portion to the suspicion excited by the merchantman, the aux- 
iliary vessel of war or privateer may delay resorting to the last 
extremity until some other measure has been taken, such as not 
aiming the third discharge at the vessel, but approaching it and 
making a fresh notification by word of mouth ; but if this last 
conciliatory measure prove fruitless, force will immediately be 
resorted to." (Article 4, b.) 

Resistanc-e and armed merchant vessels of belliger- 
ents. — Before the days of steam navigation, merchant 
vessels were usually equipped for defense against pirates, 
sea robbers, privateers, and often against the more lightly 
armed vessels of war. With the introduction of modern 
armored and armed vessels of war, there was little reason 
for arming merchant vessels. The Declaration of Paris, 
1856, that "Privateering is and remains abolished", re- 



RESISTANCE AND ARMED MERCHANT VESSELS 59 

moA-ed one of the reasons formerly advanced to support 
aiming of merchant vessels, but the claim to the right to 
convert fast steam vessels into vessels of war under 
government control soon followed. The Hague Confer- 
ence of 1907 made an effort to regularize such conversion 
by conventional agreement, but some of the most impor- 
lant commercial states did not ratify the convention. 
The conditions of World War, 1914-18, led, however, 
to the arming of many vessels ordinarily classed as mer- 
chant vessels. There then arose the controversy as to the 
distinction between an unarmed merchant vessel and one 
armed for defense. Attempts to define what might con- 
stitute armament for defense met with indifferent suc- 
cess. The distinction between defensive and offensive 
action at the time of approach for visit and search would 
usually rest upon the intention of the master of the 
armed merchant vessel which would not be provable, and 
a test to which the visiting vessel of war would scarcely 
care to submit. 

W. E. Hall, whose treatise on International Law was 
a standard in England from the latter half of the nine- 
teenth century, said : 

"The right of capture on the ground of resistance to visit, and 
lhat of subsequent confiscation, flow necessarily from the lawful- 
ness of visit, and give rise to no question. If the belligerent when 
visiting is within the rights possessed by a state in amity with 
the country to which the neutral ship belongs, the neutral master 
is guilty of an unprovoked aggression in using force to prevent 
the visit from being accomplished, and the belligerent may conse- 
quently treat him as an enemy and confiscate his ship. 

"The only point arising out of this cause of seizure which 
requires to be noticed is the effect of resistance upon cargo when 
made by the master of the vessel, or upon vessel and cargo to- 
gether when made by the officer commanding a convoy. The 
English and American courts, which alone seem to have had an 
opportunity of deciding in the matter, are agreed in looking upon 
the resistance of a neutral master as involving goods in the fate 
of the vessel in which they are loaded, and of an officer in charge 
as condemning the whole property placed under his protection. 
'I stand with confidence', said Lord Stowell, 'upon all fair prin- 
ciples of reason, upon the distinct authority of Vattel, upon the 
institutes of other great maritime countries, as well as those of 



gO VISIT BY AND INTERNMENT OF AIRCRAFT 

our own country, when I venture to lay it down, that by the law 
of nations as now understood a deliberate and continued resist- 
ance to search, on the part of a neutral vessel, to a lawful cruiser, 
is followed by the legal consequences of confiscation.' " ( [The 
Maria (1799) 1 C. Rob. 369.] Hall, International Law, Higgins, 
8th ed., p. 891.) 

H oil and? s opinion, 1905. — Sir Thomas Erskine Hol- 
land, late professor of international law at Oxford Uni- 
versity and responsible for the Admiralty Manual of 
Prize Law of 1888, gave a summary of his opinion upon 
the sinking of neutral prizes in a letter to the London 
Times, June 29, 1905 : 

"1. There is no established rule of international law which 
absolutely forbids, under any circumstances, the sinking of a 
neutral prize. A consensus gentium to this effect will hardly be 
alleged by those who are aware that such sinking is permitted by 
the most recent prize regulations of France, Russia, Japan, and 
tho United States. 

"2. It is much to be desired that the practise should be, by 
future international agreement, absolutely forbidden — that the 
lenity of British practice in this respect should become inter- 
nationally obligatory. 

"3. In the meantime, to adopt the language of French instruc- 
tions, 'On ne doit user de ce droit de destruction qu'avec plus la 
grande reserve' ; and it may well be that any given set of instruc- 
tions (e. g. the Russian) leaves on this point so large a discre- 
tion to commanders of cruisers as to constitute an intolerable 
grievance. 

"4. In any case, the owner of neutral property, not proved to be 
good prize, is entitled to the fullest compensation for his loss. In 
the language of Lord Stowell : 

" 'The destruction of the property may have been a meritorious 
net towards his own Government ; but still the person to whom the 
property belongs must not be a sufferer ... if the captor has by 
the act of destruction conferred a benefit upon the public, he must 
look to his own Government for his indemnity.' " (Holland, 
Letters on War and Neutrality, 3d ed., 179.) 

American attitude, 1916. — When relations were 

strained between the United States and Germany in 

early 1916 questions were raised in regard to visit and 

search. In a communication from the Secretary of State 

to the American Ambassador in Germany, April 28, 

1916, it was said : 

"If Secretary von Jagow asks you as to the methods of warfare 
which this Government considers to be legal, you may hand to 
him a memorandum reading as follows : 



AMERICAN ATTITUDE, 1916 Q\ 

" Memorandum on Conduct of Naval Vessels toward Merchant 
Ships. 

" '1. A belligerent warship can directly attack if a merchant 
vessel resists or continues to flee after a summons to surrender. 

" '2. An attacking vessel must display its colors before exercis- 
ing belligerent rights. 

" '3. If a merchant vessel surrenders, the attack must im- 
mediately cease and the rule as to visit and search must be 
applied — 

"'(a) by a visit to the vessel by an officer and men of the 
attacking ship; or 

"'(b) by a visit to the attacking ship by an officer of the 
vessel attacked, with the ship's papers. 

" '4. An attacking vessel must disclose its identity and name of 
commander when exercising visit and search. 

" '5. If visit and search disclose that the vessel is of belligerent 
nationality, the vessel may be sunk only if it is impossible to 
take it into port, provided that the persons on board are put in 
a place of safety and loss of neutral property is indemnified. 

" 'Note: (a) A place of safety is not an open boat out of sight 
of land. 

"'(b) A place of safety is not an open boat, if the wind is 
strong, the sea rough, or the weather thick, or if it is very cold. 

"'(c) A place of safety is not an open boat which is over- 
crowded or is small or unseaworthy or insufficiently manned. 

" '6. If, however, visit and search disclose that the vessel is of 
neutral nationality, it must not be sunk in any circumstances, 
except of gravest importance to the captor's state, and then only 
in accordance with the above provisos and notes.' 

''You may further state that this Government is unwilling and 
can not consent to have the illegal conduct of Germany's enemies 
toward neutrals on the high seas made a subject of discussion in 
connection with the abandonment of illegal methods of sub- 
marine warfare." (Foreign Relations, U. S., 1916 Supplement, 
p. 252.) 

Attempt to escape. — The attempt of an enemy mer- 
chant vessel to escape visit and search is natural and 
lawful, and well established rules exist to protect the 
merchant vessel in the exercise of the effort to escape. 
Even when attempting to escape the merchant vessel has 
from the eighteenth century been entitled to considerate 
treatment and is not liable to penalty merely because of 
the attempt. Signals must be given to bring the mer- 
chant vessel to. The warning gun across the bow was 
commonly required, and the vessel of war was required 
to hoist its true colors before firing a gun in action. In 
order that no undue risk may be incurred by the mer- 



52 VISIT BY AND INTERNMENT OF AIRCRAFT 

chant vessel, the visiting personnel was limited in num- 
ber and arms. The master of the visited vessel or his 
representative should not be required to come on board 
any visiting vessel to show his papers or for any other 
purpose, though on board he may be required to show 
his papers or open receptacles or hatches for investiga- 
tion. If the master refuses to furnish information or 
declines to show essential papers, this may be considered 
a ground of suspicion justifying bringing the ship be- 
fore a prize court. Even an enemy merchant vessel may 
have on board neutral persons and property entitled to 
consideration under the law. It has been said of visit 
and search that, "All that was necessary to this object 
was lawful; all that transcends it was unlawful." (The 
Anna Maria [1817], 2 Wheaton 327.) 

Article 22, London Naval Treaty, 1930.— -The Articles 
of the London Xaval Treaty of 1930 were in general to 
remain in force till December 31, 1936. but part IV, 
Article 2*2, was to "remain in force without limit of 
time." This article provides: 

"Article 22. The following are accepted as established rules of 
International Law : 

"(1) In their action with regard to merchant ships, submarines 
must conform to the rules of International Law to which surface 
vessels are subject. 

"(2) In particular, except in the case of persistent refusal to 
stop on being duly summoned, or of active resistance to visit or 
search, a warship, whether surface vessel or submarine, may not 
sink or render incapable of navigation a merchant vessel without 
having tirst placed passengers, crew and ship's paper in a place 
of safety. For this purpose the ship's boats are not regarded as a 
place of safety unless the safety of the passengers and crew is 
assured, in the existing sea and weather conditions, by the proxim- 
ity of land, or the presence of another vessel which is in a position 
to take them on board. 

"The High Contracting Parties invite all other Powers to 
express their assent to the above rules." (1930 Naval War 
College. International Law Situations, p. 159; 46 Stat. (Pt. II), 
2858.) 

While it might have been preferable to have an article 
which would have limited its provisions to the statement 



SUBMARINE RULES, 1930 53 

of the first paragraph, merely requiring submarines to 
conform to the rules for surface vessels, the statement 
does not necessarily extend by analogy to aircraft. 

The general principles of visit and search would, how- 
ever, be unchanged, even though a new instrumentality 
might be introduced. The summoning, bringing to, 
boarding, inspection of papers, search in certain cases, 
taking in, and bringing before a prize court was the 
general procedure, though in certain cases some of these 
steps might be omitted. A surface vessel under modern 
conditions might consider it expedient to escort a vessel 
to port for search by port authorities, omitting other 
procedure. The state of the escorting vessel in such a 
case assumes all liability for the action if it proves un- 
grounded, and in any case the service of the escorting 
vessel has been for the time lost to its forces. The seized 
vessel cannot complain that the belligerent making the 
seizure has not acted in good faith and shown adequate 
evidence of suspicion. The placing of a prize crew on 
board is analagous as an evidence of intent to make a 
bona fide seizure. 

The mere ordering into port for search is a practice 
of a different character and liable to grave abuses. 

Discussion, The Hague, 1923. — At The Hague in 1923 
the Commission of Jurists did not find it easy to agree 
upon rules for visit and search, and the Netherlands 
Delegation made reservations upon the rules as formu- 
lated. This delegation regarded aircraft as a new engine 
of war unlike a vessel of war and unable to exercise a 
similar control over a merchant vessel and uncertain as 
to its control over private aircraft. No article upon the 
exercise of visit and search of merchant vessels by air- 
craft received a majority vote of the delegations. The 
United States, British Empire, France. Italy, Japan, and 
the Netherlands were represented. A majority of the 



Q4 VISIT BY AND INTERNMENT OF AIRCRAFT 

delegations did not feel able to support the principle 
embodied in Article 49 of the Report of the Commission 
to the following effect: 

"Private aircraft are liable to visit and search and to capture 
by belligerent military aircraft." 

All agreed that such an article should be carefully 
guarded in order to avoid abuse. It was evident that 
visit and search sur place would often be impossible by 
aircraft of any type in use in 1923, and would be pos- 
sible only under very favorable conditions. It was 
agreed that to permit an aircraft to compel a merchant 
vessel to come to a convenient place for visit and search 
would impose much inconvenience and heavy losses on the 
vessel, and that such an act on the part of a belligerent 
surface vessel of war was of doubtful validity. 

"The French Delegation proposed the following text : 
"Aircraft are forbidden to operate against merchant vessels, 
whether surface or submarine, without conforming to the rules 
to which surface warships are subject." (1924 Naval War Col- 
lege, International Law Documents, p. 138.) 

The discussion which is summarized in the General 
Report of the Commission of Jurists, February 19, 1923, 
is of such significance that it is presented somewhat 
fully. 

Visit and search by aircraft. — The preliminary drafts 
of a code for aerial warfare before the Commission of 
Jurists upon the revision of the rules of warfare at The 
Hague, 1922-23. were those of the United States and 
Great Britain. The commission worked on the basis of 
a draft submitted by the American Delegation, and the 
American and British drafts provided for the use of air- 
craft in visit and search. Some of the other states were 
opposed. The Netherlands Delegation felt : 

"that the custom and practice of international law is limited to a 
right on the part of belligerent warships to capture after certain 
formalities merchant vessels employed in the carriage of such 
commerce. No justification exists for the extension of those 



DISCUSSIONS, THE HAGUE. 1923 65 

rights to an aircraft, which is a new engine of war entirely dif- 
ferent in character from a warship and unable to exercise over 
merchant vessels or private aircraft a control similar to that exer- 
cised by a warship over merchant vessels. Consequently there 
is no reason to confer on a military aircraft the right to make 
captures as if it were a warship, and no reason to subject com- 
merce to capture when carried in an aircraft. In developing in- 
ternational law the tendency should be in the direction of confer- 
ring greater, not less, immunity on private property." (1924 
Naval War College, International Law Documents, p. 137.) 

The majority of delegations, however, did not oppose 
visit and search and capture of private aircraft by bel- 
ligerent military aircraft, but a majority of votes was 
not secured upon an article extending to belligerent 
military aircraft the right of visit and search of mer- 
chant vessels and wide divergence of view was ex- 
pressed, and in the report it was stated that : 

"The aircraft in use to-day are light and fragile things. Ex- 
cept in favourable circumstances they would not be able to alight 
on the water and send a man on board a merchant vessel at the 
spot where the merchant vessel is first encountered (visite sur 
place). To make the right of visit and search by an aircraft 
effective it would usually be necessary to direct the merchant 
ressel to come to some convenient locality where the aircraft can 
alight and send men on board for the purpose. This would imply 
a right on the part of the belligerent military aircraft to compel 
the merchant vessel to deviate from her course before it was in 
possession of any proof derived from an examination of the ship 
herself and her papers that there were circumstances of suspicion 
which justified such interference with neutral trade. If the 
deviation which the merchant vessel was obliged to make was pro- 
longed, as might be the case if the aircraft was operating far from 
land, the losses and inconvenience imposed on neutral shipping 
would be very heavy. 

"Is or is not a warship entitled to oblige a merchant vessel to 
deviate from her course for the purpose of enabling the right of 
visit and search to be carried out? Would an aircraft be exer- 
cising its rights in conformity with the rules to which surface 
warships are subject if it obliged a merchant vessels to deviate 
from her course in this way? Even if a warship is entitled on 
occasion to oblige a merchant vessel to deviate from her course 
before visiting her, can a similar right be recognised for military 
aircraft without opening the door to very great abuses?" (Ibid., 
p. 137.) 

Prohibition of the use of aircraft against merchant 
vessels except under the rules applicable to surface ves- 



56 VISIT BY AND INTERNMENT OF AIRCRAFT 

sels of war was the principle supported by the majority 
in 1924. 

The Report of the Commission of Jurists shows t he- 
attempts made in 1924 to reach an agreement. 

"The American Delegation, therefore, proposed the following 
text : 

" 'Aircraft are forbidden to visit and search surface or sub- 
surface vessels without conforming in all respects to the rules 
to which surface vessels authorized to conduct visit and search 
are subject. 

11 'In view of the irregularities to which the use of aircraft 
against merchant vessels might give rise, it is declared that air- 
craft cannot divert a merchant vessel from its course without 
first boarding it; that in no event may an aircraft destroy a 
merchant vessel unless the crew and passengers of such vessel 
have first been placed in safety ; and that if an aircraft cannot 
capture a merchant vessel in conformity with these rules it must 
desist from, attack and from seizure and permit such vessel to 
proceed unmolested.'" (Ibid, p. 139.) 

The British Delegation, maintaining the analogy to 
the submarine, proposed the language of the unratified 
Washington Treaty of February 6, 1922, substituting, 
except in the phrasing of the preliminary cause, the word 
"aircraft*' for "submarine", as follows: 

"The use of aircraft against merchant vessels must be regu- 
lated by the following provisions, which, being in conformity 
with the rules adopted by civilised nations for the protection of 
the lives of neutrals and non-combatants at sea in time of war, 
are to be deemed an established part of international law : 

"A merchant vessel must be ordered to submit to visit and 
search to determine its character before it can be seized. 

"A merchant vessel must not be attacked unless it refuses to 
submit to visit and search after warning or to proceed as directed 
after seizure. 

"A merchant vessel must not be destroyed unless the crew and 
passengers have first been placed in safety. 

"Belligerent aircraft are not under any circumstances exempt 
from the universal rules above stated ; and if an aircraft cannot 
capture a merchant vessel in conformity with these rules, the 
existing law of nations requires it to desist from attack and 
from seizure and to permit the merchant vessel to proceed 
unmolested." (Ibid., p. 139.) 

The Japanese Delegation saw practical difficulties and 
dangers in this procedure, but at length expressed readi- 
ness to accede to the American proposal. 



DISCUSSIONS, THE HAGUE, 1923 g7 

The Italian Delegation suggested the addition of the 
following to the British proposal : 

"After the first paragraph add — 

" 'Visit must in general be carried out where the merchant 
vessel is first encountered. Nevertheless, in cases where it may 
be impossible to alight and there is at the same time good ground 
for suspicion, the aircraft may order the merchant vessel to 
deviate to a suitable locality, reasonably accessible, where she 
may be visited. If no good cause for this action is shown, the 
belligerent State must pay compensation for the loss caused by 
the order to deviate.' 

"After the third paragraph add — 

" 'If the merchant vessel is in the territorial waters of the 
enemy State and not on the high seas, she may be .destroyed 
after previous notice has been given to the persons on board to 
put themselves in a place of safety and reasonable time has been 
given them for so doing.' " (Ibid., p. 140.) 

The Italian Delegation also maintained that a ma- 
jority of the European Powers admitted that a merchant 
vessel might be obliged to deviate to a suitable port 
where visit might take place. 

The Netherlands delegation accepted the American 
proposal. 

"When put to the vote the American proposal was supported by 
the Japanese and Netherlands Delegations and opposed by the 
British, French and Italian. The French proposal was opposed 
by the American, British, Japanese and Netherlands Delegation. 
The British and Italian Delegations explained that they could only 
support it if it was amplified in the way indicated in the British 
and Italian amendments.. 

"Although all the Delegations concurred in the expression of a 
desire to adopt such rules as would assure the observance of the 
dictates of humanity as regards the protection of the lives of neu- 
trals and non-combatants, the Commission, by reason of a diver- 
gence of views as to the method by which this result would best 
be attained, was unable to agree upon an article dealing with the 
exercise of belligerent rights by aircraft against merchant vessels. 
The code of rules proposed by the Commission therefore leaves the 
matter open for future regulation." (Ibid., p. 141.) 

Mr. Spaight on aircraft operations against merchant 
vessels. — Mr. J. M. Spaight, who has given much atten- 
tion in Great Britain to the aspects of aviation as a factor 
in Avar, has a chapter on the operation of aircraft against 
merchant vessels in his book upon "Air Power and War 



gg VISIT BY AND INTERNMENT OF AIRCRAFT 

Rights." Among the questions he raises is whether air- 
craft have the right to visit and search, and to capture 
merchant vessels. This question became a practical one 
during the World War, 1914^-18, and Mr. Spaight says : 

"Unquestionably the visit or boarding of a marine craft by an 
aircraft is technically not impossible." 

He also cites instances of acts involving the exercise of 
visit and search and capture : 

"In the Aeroplane of 4 July, 1917, there will be seen a photo- 
graph of a German seaplane floating beside a submarine and a 
German officer or man standing on one of the seaplane's floats and 
handing a document to the commander of the submarine. Here, 
then, was a clear case of visit. It was unofficially reported from 
Rotterdam on 23 July. 1917, that the Dutch steamer "Gelderland" 
was stopped by three German seaplanes off the Hook of Holland, 
and that a German officer went on board and forced the ship to 
proceed to Zeebrugge. It has been placed on record by Naval 
Capt. Hollender that the German airship L. 40, after landing on 
the water, examined a ship's papers, and that the L. 23 surpassed 
this feat by not only sending a party (in the ship's boats) to 
inspect the cargo of a Norwegian three-masted sailing ship, but put 
a prize crew of three on board the vessel, which was then safely 
brought into a German port, after a voyage of 43 hours in the 
North Sea." (2d edition, p. 471.) 

Mr. Spaight, while admitting that such visit and search 
may have been exceptional during the World War, fore- 
sees that with changed conditions the exception may in a 
modified form become the rule. 

Judge Moore on Hague Commission, 1922-23. — Judge 
John Bassett Moore, of the American Commission of 
Jurists meeting at The Hague in 1922-23 and drawing 
up rules for the control of radio in time of war and rules 
of aerial warfare, was elected President of the Commis- 
sion. He said of the rules submitted in the General 
Report of the Commission made on February 19, 1923 : 

"Among the numerous and varied questions with which the 
Commission undertook to deal, the only one for the regulation of 
which it was unable to agree upon a rule was that of visit and 
search of merchant vessels by aircraft. Proposals on the subject 
were presented by the British as well as by the American delega- 
tion ; but the American delegation, in the light of what the discus- 
sions developed, soon became convinced that both proposals were 



JUDGE MOORE'S COMMENT 69 

defective, and that, without stricter and more specific regulation 
and control, aircraft might inflict on life and property at sea 
calamities fully as startling as those that had resulted in the 
recent war from the employment of submarines. * * * 

"As regards the second topic — the visit and search of surface 
ships — the report, after describing the normal practice of 
cruisers, including the sending of an officer aboard in order to 
ascertain whether there is cause for capture, and the sending 
of a prize crew aboard if a case for capture is established, found 
that, if aircraft observed regular methods, they could exercise 
visit and search 'only under favorable conditions,' but that, if 
'the right of diverting merchant vessels, without boarding them,' 
were 'legally established', aircraft could exercise it 'up to the 
limit of their range of action from their land or floating base.' 
Such range of action may fairly be considered as extending to 
a distance of at least two hundred-and-fifty miles. As regarded 
the right under certain conditions to sink a prize after due pro- 
vision has been made for the safety of the crew, the report, while 
not intimating that such provision could ordinarily be made by 
the aircraft itself, stated that 'in favorable weather, and when 
it is easy to reach a friendly or neutral port, a crew may be 
compelled to abandon their ship and the ship may be fired upon 
and sunk by the aircraft.' The contemplation of aircraft thus 
ranging the seas and issuing to un visited and unsearched vessels 
orders enforcible by bombing the ship or by firing upon the 
persons aboard, can scarcely be indulged without grave appre- 
hensions. It was the possibilities thus suggested that led Mr. 
Struycken, first delegate from The Netherlands, to declare, both 
in subcommittee and in plenary session, that such a method 

of warfare might readily mean the terrorizing of the seas." 

* * * 

"Had the American delegation, in view of the divergence of 
opinions as to the right, or the extent of the right, even of 
surface craft to deviate merchantmen without search, been will- 
ing to concur in a mere enunciation of the principle that air- 
craft should have, as regarded the exercise of visit and search, 
the same rights as surface vessels, without attempting to say 
what those rights were, a majority vote might have been ob- 
tained for such a resolution. This would have been a com- 
promise, and compromise is said to be of the essence of states- 
manship. But there are two kinds of compromise. One kind 
is that in which there is a meeting of minds, resulting in an 
agreement. This is a wholesome and salutary process. The 
other kind is that in which there is no meeting of minds, but 
the divergence is veneered with a deft formula, cloaking a dis- 
agreement. This process is but a breeder of future quarrels." 
(Moore. International Law and Some Current Illusions, pp. 202, 
204.) 

Aircraft and deviation. — From their nature and 
physical limitations, aircraft might act as agents for 
deviation when they might not have the personnel or 



70 VISIT BY AND INTERNMENT OF AIRCRAFT 

other requisites essential for making a capture in the 
manner prescribed for surface vessels of war. If noti- 
fication, with instructions to proceed to a named port 
only, is all that is necessary to constitute capture, it 
would be easy for an aircraft equipped with radio to 
make a large number of captures of this nature. J. M. 
Spaight, of Great Britain, writing from the point of 
view of the operations of a stronger sea power, said in 
1926 : 

"Deviation is likely to become the rule, not the exception, in 
future. Visit and search at sea by aircraft will always probably 
be difficult. The ransacking of a liner will certainly be a prac- 
tical impossibility. Even if visit sur place is declared obligatory, 
it is unlikely to be anything but perfunctory. But most probably 
there will be no visit at all. Ships will be ordered to named 
ports and if they take the risk of disobeying the order and 
persist in disobeying it, they will be attacked and perhaps sunk. 
The conditions of 1915-18 may be reproduced in an aggravated 
form. 

"The position of neutral commerce will indeed be wellnigh in- 
tolerable. Freedom of the sea will be dead and gone. Neutral 
shipping will be policed and dragooned as it never has been 
before. It was scourged with whips in 1914-18 ; it will be 
scourged with scorpions in a future war. Because the complete 
interruption of all neutral trade beneficial to the enemy will 
be more important than ever, because the grip on that trade will 
be tighter than ever and evasion more difficult, the conflict of 
belligerent and neutral interests will be sharper, the consequent 
disputes more bitter, and the danger of actual war with neutral 
States greater than in the past." (Aircraft and Commerce in 
War. p. 52.) 

Z^nderstood summons. — The consequences of visit and 
search are so important that there should be no doubt 
that the summons is understood and the visiting vessel 
should especially guard against extreme action until con- 
vinced that an appearance of disregard of a signal is not 
misleading. 

The Japanese Instructions of 1916, after providing day 
and night signals, stated : 

"3. In the event of the merchant ship disregarding the orders 
given under the preceding two clauses, it may be fired on by the 
warship. 

# "4. For the time being, if it is found that the meaning of the 
signals above mentioned is not understood, His Imperial Majesty's 



UNDERSTOOD SUMMONS 71 

ships will communicate with merchant ships in the international 
code of signals. The procedure hitherto followed in other respects 
remains unchanged." 9 

The Instructions for the Navy of the United States 
Governing Maritime Warfare, 1917, stated : 

44. Subject to any special treaty provisions the following pro- 
cedure is directed : Before summoning a vessel to lie to, a ship of 
war must hoist her own national flag. The summons shall be 
made by firing a blank charge (coup de semonce), by other inter- 
national signal, or by both. The summoned vessel, if a neutral, 
is bound to stop and lie to, and she should also display her colors ; 
if an enemy vessel, she is not so bound, and may legally even 
resist by force, but she thereby assumes all risks of resulting 
damage. 

"45. If the summoned vessel resists or takes to flight she may 
be pursued and brought to, by forcible measures, if necessary." 

Treaties often made very particular provisions as to 
the method which the whole conduct of the visit and 
search should follow. Each vessel was entitled to know 
the identity of the other and measures necessary to this 
end were essential. The summoning gun was the method 
of attracting attention before the use of radio became 
common. If another method equally effective with the 
summoning gun is available, that method may be used. 
It is essential that the summons, by whatever means, be 
understood, and it is admitted that there may be many 
causes which might make summons by radio ineffective. 

*' Proceed as directed" — In the unratified treaty of the 
Washington Conference of 1921 on the "Use of Sub- 
marines and Noxious Gases in Warfare". Article I, there 
was the following: 

"A merchant vessel must be ordered to submit to visit and 
search to determine its character before it can be seized. 

"A merchant vessel must not be attacked unless it refuse to 
submit to visit and search after warning, or to proceed as directed 
after seizure." (1921 Naval War College, International Law 
Documents, p. 330.) 

The words of this paragraph were discussed as regards 
submarines at the Naval War College. (1926 Naval War 
College, International Law Situations, pp. 42, et seq.). 



72 VISIT BY AND INTERNMENT OF AIRCRAFT 

In 1926 it was stated that as to submarines — "there would 
be some doubt as to the meaning of the words 'to proceed 
as directed after seizure. 5 " There was also uncertainty 
as to the significance of the words "capture" and "seizure" 
used in Article I. 

The late Admiral Harry S. Knapp, U. S. N., in 1924, 
published an article in which he predicted that this con- 
vention, if adopted, would be a regrettable restriction 
upon any attempt to formulate the laws of war. 

The failure of this treaty to receive approval of the 
signatory powers left many questions open, and a part 
of these came before the London Xaval Conference of 
1930. 

American aircraft over Mexico. 1919. — American 
troops in 1919 crossed the Mexican frontier, the Amer- 
ican Government affirming on August 2G that it could 
not 

"be expected to suffer the indefinite continuance of existing 
lawless conditions along its border which expose its citizens to 
maltreatment at the hands of ruffianly elements of the Mexican 
population which their Government seems unable to control, and 
which have undoubtedly been encouraged to continue their acts 
of aggression against citizens of the United States by reason 
of the immunity from punishment for such acts which they have 
enjoyed. 

'•No violation of the national sovereignty of Mexico was in- 
tended by this expedition. It was despatched upon the hot trail 
of the bandits in question with the sole object of punishing 
them for their mistreatment of officers of the American Army, 
and of preventing future activities of a similar nature upon our 
frontier. This object, having been accomplished as far as was 
possible in the circumstances, orders have been issued for the 
return of the troops to American territorv"' (Foreign Relations, 
U. S., 1919, vol. II, p. 560). 

A few days later the Mexican Ambassador, on Sep- 
tember 1, communicated to the Secretary of State that — 

"It has been reported to my Government during the afternoon 
of the 28th of August, 1919, two aeroplanes of the United States 
which came from and afterward returned in the direction of 
Ojinaga flew over the city of Chihuahua and although this is the 
first time that U. S. aeroplanes flew over that city, they are 
known to cross the boundary line of the two Republics daily. 



AIRCRAFT OVER MEXICO, 1919 73 

"And, in compliance with instructions received from my Gov- 
ernment, I have the honor to bring the foregoing to Your Excel- 
lency's knowledge and to ask that you kindly use your good 
offices in having the facts complained of duly investigated in 
order that those found guilty be punished and repetition of 
violations like those above stated be prevented. 

"I duly thank Your Excellency [etc.] 

Y. Boniixas" 
(Ibid., p. 561.) 

On September 8, 1919. the Secretary of State said 
that the "War Department promises to issue strict orders 
against repetitions." 

The Mexican Ambassador sent a further communi- 
cation to the Secretary of State on October 25, 1919 : 

"It has been reported to my Government that on the 23rd of 
of this month, at eleven a. m., an army aeroplane from Douglas, 
Arizona, flew at a height of about eight hundred meters above 
Nogales, Arizona, near the boundary line. The crew fired a 
machine gun several times, and some of the bullets carried as far 
as Nogales, Sonora, one hitting a dwelling where it luckily caused 
no bodily injury. 

"Under instructions received to that effect from my Gov- 
ernment, I have the honor to bring the foregoing to Your Excel- 
lency's knowledge with a request that you kindly use your good 
offices to have the facts investigated and suitable punishment 
brought upon those who may be found guilty. 

"I take [etc.] 

Y. Boniixas." 
(Ibid., 564.) 

To this communication the Acting Secretary of State 

replied on December 26: 

"With further reference to Your Excellency's note No. E-4670 
of October 25, 1919, concerning a report to the effect that on 
October 23rd the crew of a United States Army Aeroplane fired 
into the town of Nogales, Sonora, I have the honor to say that 
I am now in receipt of a communication from the branch of 
this Government to which the matter was referred stating that 
a careful investigation fails to disclose such an occurrence on 
October 23rd. I am officially informed, however, that a Lieu- 
tenant in the Air Service of the United States Army is being 
tried by a General Court Martial on the charge of having fired 
into the town of Nogales on October 19, 1919. 

"Accept [etc.] 

Frank L. Polk." 
(Ibid., p. 565.) 

Aircraft in distress, etc. — While naval vessels in dis- 
tress have been allowed to enter neutral jurisdiction for 

1820—37 6 



74 VISIT BY AND INTERNMENT OF AIRCRAFT 

repairs necessary to make the vessel seaworthy, the obli- 
gation to intern a belligerent aircraft entering neutral 
jurisdiction is comprehensive except for flying ambu- 
lances and aircraft upon vessels of war. 

During the World War. 1914-18, no exceptions were 
made for disability, error, fog, or other reasons. Air- 
craft crossing a neutral frontier were shot down — in 
some cases on sight. This accords with the rules subse- 
quently drawn up at The Hague, 1923 : 

' 'Article 40. 

"Belligerent military aircraft are forbidden to enter the juris- 
diction of a neutral State. * * * 

"Article 42. A neutral Government must use the means at its 
disposal to prevent the entry within its jurisdiction of belligerent 
military aircraft and to compel them to alight if they have entered 
such jurisdiction. 

"A neutral Government shall use the means at its disposal to 
intern any belligerent military aircraft which is within its juris- 
diction after having alighted for any reason whatsoever, together 
with its crew and the passengers, if any." (1924 Naval War 
College, International Documents, pp. 131, 133.) 

The obligation to intern the aircraft also extends to 
passengers, personnel, and contents. The report of the 
Commission of Jurists in 1923 says of internment, 

"It is an obligation owed to the opposing belligerent and is 
based upon the fact that the aircraft has come into an area where 
it is not subject to attack by its opponent." (Ibid., p. 133.) 

Aircraft and neutral jurisdiction. — During the World 
War the question of the relation of aircraft to neutral 
jurisdiction for the first time became one of major im- 
portance. In general, entrance by belligerent aircraft to 
the air above neutral territory was prohibited. Ques- 
tions as to entrance of the air above neutral territorial 
waters arose and this right was denied. Aircraft resting 
upon and remaining upon vessels of war were regarded 
as parts of the vessel and the vessel was not discriminated 
against because having aircraft. Aircraft carriers are 
not to be excluded if other vessels of war are admitted 
though the aircraft must remain on the carrier. 



SPAIGHT, AND RICHMOND ON AIRCRAFT 75 

Mr. J. M. Spaight says of aircraft and neutral 
jurisdiction: 

"The important question whether the laws of neutrality allow 
belligerent military aircraft to come and go in neutral jurisdiction 
was answered by the practice of 1914-18 with a firm and unmis- 
takable negative. The unanimity of the answer was remarkable. 
All the neutral States who had occasion to decide the question 
decided it in the same general way, and their decision gave rise to 
no protest on the part of the belligerents concerned, with one sin- 
gle exception, which the subsequent action and compliance of the 
State making it deprived of all its force. The Netherlands, Swit- 
zerland, Denmark, Norway, Sweden, Spain, and Italy, Roumania, 
Bulgaria, and China, while still neutral, showed by words or acts 
or both that they adhered to the principle of prohibition of bellig- 
erent air entry, coupled with the obligation of the neutral State to 
intern any aircraft and airmen effecting entry in face of such pro- 
hibition. How general was the acceptance of this principle was 
shown by the fact that even in Persia, in which British, Russian, 
and Turkish land forces had been already fighting for two years, 
an attempt was made to intern a British pilot — Lieut. Browning — 
when he flew to Teheran in January, 1918. His aeroplane had 
been stripped of its machine-guns and other armament on the Per- 
sian frontier — "so that he should not violate neutrality," says 
Lieut. Col Tennant — but, notwithstanding this, the Swedish gen- 
darmerie at Teheran proposed to intern him, and were only pre- 
vented from doing so by the Cossacks who were present in superior 
numbers to the Swedes." (Air Power and War Rights, 2d ed., 
p. 421.) 

Admiral Richmond on rules for aircraft. — The Wash- 
ington Naval Conference of 1921-22 proposed an agree- 
ment restricting the use of submarines which was never 
ratified. At the London Naval Conference of 1930 the 
submarine was for certain purposes put under the rules 
for surface vessels of war. Of this Admiral Kichmond, 
writing a few years later, said : 

"The Conference which sat in London agreed that it is con- 
trary to humanity that merchant ships should be sunk by sub- 
marines, and that the rules which govern surface vessels apply 
with equal weight to submarines: that is to say, that the act of 
sinking a merchant ship by means of a torpedo was condemned. 
It is curious that the same rules should not have been applied 
to the air flotilla, for there is no intrinsic difference between 
sinking a vessel with a torpedo fired from an underwater craft, 
and sinking her with a torpedo fired or a bomb from a craft which 
navigates above the surface. Presumably, the conduct of air- 
craft was imagined to be a matter of 'air warfare' with which 
the Conference had nothing to do: if so, it illustrates how un- 



76 VISIT BY AND INTERNMENT OF AIRCRAFT 

fortunate it is to approach questions of this kind in the sub- 
jective manner. If aircraft had been recognised to be what they 
are, flying torpedo-boats and gun-boats, units of sea power, this 
illogical discrimination could not have been made." * * * 

•'If. however, it should be resolutely declared that what is not 
tolerable in a submarine is not tolerable in any other form of 
vessel : that weakness or technical inability to fulfil certain 
conditions does not release an instrument from obligations which 
bind other instruments; then it would follow that this form of 
attack [sinking surface craft] was illegal. Illegality, it may be 
said, does not matter : each nation may have its own view on 
that question ; and though one may elect to consider an act illegal, 
that decision has no binding effect upon another who thinks 
otherwise, and to whom the particular practice appears ad- 
vantageous. But illegality is not so easily disposed of. It is a 
maxim that illegal acts justify retaliation. Those who consider 
attack in this form upon the noncombatant merchant ship to 
be illegal are at complete liberty to warn those who take the 
other view that they hold themselves entirely free to adopt 
whatever measures of retaliation tbey may choose. If the civilian 
in the ship is to be shot or drowned ; if instead of legal con- 
demnation by a Prize Court, summary execution is to be the 
practice ; and if direct protection against these abnormal prac- 
tices should prove, in the nature of things, to be impossible, the 
people threatened with this form of sea-hooliganism may find 
itself constrained to use measures equally detestable and more 
far-reaching. The bombardment of the civilian on the sea may 
1)0 answered by the bombardment of the civilian in coastal 
towns and cities. Where it would end, it is impossible to say. 
What is called 'civilisation' had produced, until the War of 
1914-18, certain agreements to limit the acts of war. It was 
recognised that indiscriminate conduct was, in the end, disad- 
vantageous: that it caused suffering while doing nothing towards 
attaining the final object of war, which is Peace. The removal 
of those restraints upon certain forms of warfare profited no 
one in the recent war, and, from the profound hatreds which 
were created, has been one of the principal obstacles in the re- 
sumption of peace." (Admiral Sir Herbert Richmond, "Sea 
Power in the Modern World", pp. 146-49.) 

Netherlands American Steam, Navigation Co. v. H. M. 
Procurator General, 1925. — The detention by British 
authorities for forty-one days in 1915 of a vessel be- 
longing to a Netherlands American Company led to a 
claim for the loss of the use of the vessel. This claim 
in appeal from the War Compensation Court came be- 
fore the King's Bench Division of the High Court of 
Justice and judgments were delivered November 9, 1925. 
The Court through Bankes L. J., stated: 



CASE OF SOMMELSDIJK 77 

"There is no dispute about the facts, which can be stated quite 
shortly. Early in the month of October, 1915, the respondents' 
vessel, the Sommelsdijk, was on a voyage from Buenos Ayres to 
Helsingborg and Malmo with a cargo of maize, linseed and bran. 
On or about October 15, when the vessel entered the Downs, 
she was detained by H. M. Naval Patrols and searched, as far as 
it was possible to search her, without discharging her cargo 
and bunkers. The detention in the Downs continued until Oc- 
tober 25. when an armed guard and a pilot were placed on board, 
and orders were given that the vessel was to proceed to Lon- 
don, and then, quoting the language of the master in para. 
13 of his affidavit : 'The ship was taken to Gravesend accom- 
panied by a torpedo-boat from the Edinburgh Channel, and 
brought to an anchor at Gravesend,' and from Gravesend the 
vessel was taken up into the Royal Albert Dock and there thor- 
oughly searched, her cargo for that purpose being discharged 
After the search was completed, the cargo was reloaded, and 
ultimately on December 5, again quoting the master's lan- 
guage: 'The ship was allowed to resume her voyage.' * * * 
The question for decision in the present case is whether the 
modern practice of carrying out the right of visit and search 
constitutes a seizure within the meaning of the commission. 
In the absence of any authority to the contrary it would seem 
that the means adopted under the present practice of carrying 
out a visit and search would amply justify a finding of a 
seizure. What more is wanted than the forcible detention of a 
vessel, followed by the placing of an armed guard on board 
in order to compel the carrying out of orders that the vessel 
is to proceed to some named port and there to remain until 
allowed to proceed?" (Netherlands American Steam Navigation 
Company v. H. M. Procurator General, 1 K. B. [1926] 84, 93.) 

In this case Scrutton, L. J., said : 

"What had happened to the Sommelsdijk was agreed by coun- 
sel to be that in exercise of the belligerent rights of search she 
had been detained in the Downs, then brought to London with an 
armed crew of forces of the Crown on board and in charge of one 
of His Majesty's destroyers, there searched and ultimately 
released. 

"It was common ground that before the war the belligerent 
right of search of neutral vessels was usually exercised at sea, 
but that during the war the presence of submarines and the size 
of modern ships led to an extension of that procedure, by which 
the neutral ship was brought into port for examination, without 
being necessarily brought before the Prize Court for adjudication. 
Oppenheim (International Law, vol. ii., 429) speaks of capture or 
seizure 'because grave suspicion demands a further enquiry which 
can be carried out in a port only.' and (184) that 'seizure is 
effected by securing possession of the vessel through the captor 
sending an officer and some of his own crew on board/ or direct- 
ing her to steer according to the captor's orders. I cannot doubt 
that what happened here was a 'seizure,' the legality of which 
could be investigated in the Admiralty sitting in Prize, which 



78 VISIT BY AND INTERNMENT OF AIRCRAFT 

also would deal with any claim for compensation for undue delay 
in seizure and examination. The President informed us that 
such matters had been frequently dealt with by the Admiralty 
sitting in Prize, and we were supplied with a list of cases support- 
ing his view." (Ibid., 97.) 

Atkin, L. J., concurring in the same case, said : 

"If there were an immediate intention at the commencement 
of the operation to bring the vessel in for adjudication, there 
would be an obvious capture, and in my opinion it makes no 
difference that the present intention is to bring her in for search, 
with the further intention if the search results in a particular 
way to have the vessel or goods adjudicated. It cannot be 
doubted that the practice of the Prize Court in this country has 
been to act on this view. I have no doubt myself that in proper 
circumstances the owners of a vessel or goods so brought in for 
search alleging unreasonable delay may apply to the Prize Court 
for relief, and that the Prize Court has jurisdiction in such a case 
to order release; and further has jurisdiction to award compen- 
sation if the ship has been brought in for search unreasonably 
or otherwise in the course of the search has been treated unrea- 
sonably. It would be remarkable if the result were otherwise, 
for in the absence of domestic legislation in the belligerent country 
the neutral owner would apparently be without remedy." (Ibid., 
100.) 

Radio. — The use of wireless telegraphy early in the 
twentieth century had shown that international regula- 
tions were essential, because some of the proposed na- 
tional restrictions would not be generally acceptable. 
Regulations as to use of wireless telegraphy in time of 
peace were not particularly difficult to devise as is evi- 
dent in the Berlin Convention of 1906, in the London 
Convention, 1912, and in others of later date. The re- 
strictions upon the erection of wireless stations and use 
of wireless telegraphy in time of war in neutral territory, 
provided in V Hague Convention of 1907, covered only a 
part of the problems that soon arose. The proclama- 
tions and decrees during the world war varied greatly 
in character and effectiveness, and an attempt was made 
to set forth the rules for the use of radio and aircraft 
in the Report of the Commission of Jurists, The Hague. 
1923. 



USE OF RADIO 79 

The Hague Convention V of 1907 had forbidden the 
erection by belligerents of a wireless or like station on 
neutral territory or the use of such installation estab- 
lished before the war for military purposes unless it had 
also been open for service of public messages. 

On the outbreak of the World War, Switzerland, Au- 
gust 2, 1914, forbade the installation of new radio stations 
and the use of existing stations. 

Some states included under the prohibited means of 
communication, optical apparatus, lights, flags, etc., and 
required dismantling of radio apparatus on all vessels 
entering their waters. The use of radio except on Canal 
business was forbidden by the United States to all bellig- 
erent vessels in the Panama Canal Zone. The regula- 
tions in regard to the use of radio issued by South 
American states were often very detailed. 

In referring to summons by aircraft in the Naval 
War College, International Law Situations, 1930, it was 
said : 

"Summons of a merchant vessel is the means by which the 
attention of such a vessel is drawn to a vessel of war which 
desires to communicate with the merchant vessel. The summons 
may be by signal flag or by an other effective method. There 
is not any necessary implication that the use of force is contem- 
plated. Visit and search may or may not follow the summons. 
There seems to be no reason why the use of radio may not be 
as lawful as any other means of attracting attention or why 
an aircraft may not summon a merchant vessel as well as any 
other craft." (1930 Naval War College, International Law Situa- 
tions, p. 102.) 

Resume. — In the Xaval War College International 
Law Situations, 1930, pages 98 to 135, there is a discus- 
sion of the use of aircraft. It was shown that practice 
and court decisions logically regarded an aircraft at- 
tached to a vessel and the personnel of the aircraft as a 
part of the equipment and personnel of the vessel of war. 
The British and to some degree the Italian point of view 
favored deviation for visit and search. "To proceed as 



gO VISIT BY AND INTERNMENT OF AIRCRAFT 

directed" after seizure, unless under escort, or after a 
prize crew had been placed upon the seized vessel, is not 
an accepted obligation under international law. Some 
states decline to admit any obligation to the belligerents 
as resting upon its vessels to follow a routing unless the 
force to make the orders effective is present, and only so 
long as it is present. In every case the orders of the 
visiting vessels whether naval or air craft, must be made 
known to and be understood by the visited craft before 
responsibility for carrying out the orders can be pre- 
sumed. Upon the high sea vessels may be met whose 
radio apparatus may not be working or the instructions 
may be misunderstood. 

During the early stages of the development of aircraft, 
there was uncertainty as to the obligations of neutral 
states in regard to the use of the superjacent air by 
belligerents. Gradually the absolute prohibition of such 
use became the accepted rule. Of course, in case of dis- 
tress an aircraft might seek a landing in neutral juris- 
diction but it would be interned with the personnel. 
Aircraft might be brought within neutral jurisdiction 
on a vessel which might lawfully be permitted to enter, 
but they must not be separated from the vessel under 
liability to internment. 

SOLUTION 

(a) 1. The Ya-10 should not use force against the Xala 
till certain that the Xala has received and understood 
the summons. When certain that summons has been 
received and is understood, the Ya-10 may use force 
sufficient only to bring the Xala to the Yaga under escort 
or in case of persistent or active resistance, the Ya-10 
may sink the Xala, after assuring the safety of passen- 
gers, crew, and papers. 

2. The Ya-10 should not use force against the Xala 
till certain that the Xala has received and understood 



SOLUTION §1 

the summons. When certain that summons has been 
received and is understood, the Ya-10 may use force 
sufficient only to bring the Xala to the Yaga under escort 
or in case of persistent or active resistance, the Ya-10 
may sink the Xala, after assuring the safety of passen- 
gers, crew, and papers. 

3. The Ya-10 should not use force against the Xala 
till certain that the Xala has received and understood the 
summons. When certain that summons has been received 
and is understood, the Ya-10 may use force sufficient 
only to bring the Xala to the Yaga under escort. If 
the Ya-10 decides not to incur risk from the approaching 
cruiser of X, the Ya-lO may take no further action in 
regard to the Xala. 

4. If a merchant vessel of neutral state N, the Nela, 
should be summoned by the Ya-10 under conditions iden- 
tical to (1), (2), and (3) above, the same action may be 
taken. 

(b) The commander of the Ya-10 being already cer- 
tain that the summons is received, should also be certain 
that it is understood, when he may proceed as in (1), 
(2), (3), and (4) above. 

(c) 1. State K should use due diligence to intern the 
Pa-11, an aircraft of state Y. 

2. State Q should use due diligence to intern the 
Pa-11, an aircraft of state Y, and if the tanker of state 
Y has furnished fuel to the Pa-11, should intern the 
tanker. 

3. State R should request the Yema to turn over the 
Pa-11 for internment and if the request is not granted, 
should use due diligence to intern the Yema with the 
Pa-11 on board. 



Situation III 
NEUTRALITY, 1914-1936 

In what respects has the attitude of the United States 
as a neutral changed in the period from August 4, 1914, 
to February 29, 1936? 

CONCLUSION 

From August 4, 1914. to April 6, 1917, the United 
States, as a neutral state, followed its long established 
neutrality policy which was in general accord with ac- 
cepted international law. 

The Joint Resolution of February 29, 1936, embodied a 
nationalistic policy in many respect divergent from the 
prior policy of the United States and from the generally 
accepted doctrines of international law. 

The change in 1935-36 to a doctrine for the most part 
nationalistic has placed nationals of the United States 
under restrictions beyond those imposed by international 
law. 

NOTES 

Domestic neutrality regulation. — Since late in the 
eighteenth century, it has been customary for states 
to adopt neutrality laws in order that their citizens might, 
in advance, know their rights and duties in case of for- 
eign war. Foreign states might, if contemplating war, 
properly estimate the significance of these laws in laying 
out war plans. A state might, if planning for war 
against a state having a large commerce with a state 
the neutrality laws of which prohibited export of all 

(82* 



DOMESTIC NEUTRALITY LAWS 83 

articles of the nature of contraband, find the laws of 
the neutral more serviceable than the maintenance of a 
force to visit and search the neutral ships for contra- 
band. 

The accepted international laws of neutrality apply 
in relations with states not parties to treaty agreements 
upon special neutrality laws. Confusion may there- 
fore arise in regard to the rights of neutral citizens under 
identical situations but with respect to different states. 
Domestic neutrality laws do not necessarily imply any 
reciprocal regulations among other states. Domestic 
laws which embody the rights and duties which a 
state proposes to maintain must, to be internationally 
effective, approximate the generally accepted interna- 
tional law of neutrality. Any wide departure from this 
law may give rise to claims upon the part of one or 
the other belligerent, or in certain cases on the part 
of another neutral. 

Attitude of the United States. — The United States 
has considered itself as the great leader in the develop- 
ment of the law of neutrality. The position of the 
United States defined by Washington, April 22, 1793, 
embodied in the Act of Congress of June 5, 1794, and 
in the neutrality laws of 1818, clarified the principles 
of neutrality as understood in the United States in the 
early part of the nineteenth century. 

It is evident that some of the confusion in regard to 
neutrality was consequent upon the lack of definiteness 
in regard to the concept of war. An imperfect war 
might have as a corollary an imperfect neutrality. The 
existence of privateering added to the difficulty in de- 
manding and in enforcing exact conformity to any rules. 

The Declaration of Paris of April 16, 1856, nnnounc- 
ing the abolition of privateering, prescribing the treat- 
ment of enemy and of neutral goods and defining ef- 
fective blockade, while not adhered to by the United 



84 NEUTRALITY. 1914-1936 

States, was followed by a convention with Peru, signed 
July 22, 1856, and containing similar provisions in re- 
gard to goods which, in the preamble, were stated to be 
"in accordance with the present state of civilization" 
and as "permanent and immutable." 

Accepted restrictions. — Since the Treaty of Washing- 
ton, 1871, and the Geneva Award in the case of the 
Alabama, neutrality proclamations have usually pro- 
hibited the sending out of the jurisdiction any vessel 
built, armed, or equipped within the jurisdiction with 
the intent that it should be employed in the service of 
a belligerent then engaged in war. It has been pro- 
posed that this principle be extended to a much wider 
range so as to include aircraft, tanks and similar instru- 
ments of war. Some have suggested extending the pro- 
hibited list of all war material. 

The internationally accepted restrictions apply, how- 
ever, to ships built or sent out under contract or with 
intent to serve one of the belligerents and not to all the 
articles or materials that the belligerent might include 
in a list of contraband. Neutrals under ordinary con- 
ditions maintain that the burden of the war should rest 
upon the belligerents and that neutrals so far as possible 
be free from interference. 

Whether the principles set forth by Pinckney, Mar- 
shall, and Gerry in 1798 in a long communication to 
the French Minister of Exterior Relations, Talleyrand, 
still apply may be debated. They said : 

"The right of one nation to exchange with another the sur- 
plus produce of its labour, for those articles which may supply 
its wants or administer to its comfort, is too essential to have 
been ever classed among those admitted to be in any degree 
doubtful. It is a right in ceding which a nation would cede 
the privilege of regulating its own interests and providing for 
its own welfare. When any two nations shall choose to make 
war on each other, they have never been considered, nor can 
they be considered as thereby authorizing themselves to impair 
the essential rights of those who may choose to remain at 
peace. Consequently these rights, the free exercise of which is 



PROCLAMATION OF UNITED STATES, 1914 35 

essential to its interest and welfare, must be retained by a 
neutral power, whatever nations may be involved in a war. 

"The right of a belligerent to restrain a neutral from assist- 
ing his enemy by supplying him with those articles which are 
denned as contraband, has been universally submitted to ; but 
to cut off all intercourse between neutrals and an enemy, to 
declare that any single article which may have come from the 
possessions of an enemy, whoever may be its owner, shall of 
itself be sufficient to condemn both vessel and cargo, is to 
exercise a control over the conduct of neutrals which war can 
never give, and which is alike incompatible with their dignity 
and their welfare. 

"The rights of belligerents are the same. If this might be, 
exercised by one, so might it be exercised by every other. If 
it might be exercised in the present, so it might be exercised 
in every future war. This decree is, therefore, on the part of 
France, the practical assertion of a principle which would de- 
stroy all direct or circuitous commerce between belligerent and 
neutral powers, which would often interrupt the business of 
large portion of the world, and withdraw or change the em- 
ployment of a very considerable portion of the human race. 

"This is not all. It is the exercise of a power which war 
is not admitted to give, and which, therefore, may be assumed 
in peace as well as war. 

"It essentially affects the internal economy of nations, and 
deranges that course of industry which they have a right to 
pursue, and on which their prosperity depends. 

"To acquiesce, therefore, in the existing state of things, under 
a principle so extensive and so pernicious, is to establish a 
precedent for national degradation which can never cease to 
apply, and which will authorize any measures which power may 
be disposed to practise." (3 State Papers of the U. S., 1797- 
1801, p. 298.) 

Proclamation of neutrality, United States, 19H. — 
The President of the United States issued a proclama- 
tion on August 4, 1914, setting forth in considerable 
detail the attitude of the Government upon the subject 
of neutrality. 

By the President of the United States of America 
a proclamation 

Whereas a state of war unhappily exists between Austria- 
Hungary and Servia and between Germany and Russia and be- 
tween Germany and France ; And Whereas the United States is on 
terms of friendship and amity with the contending powers, and 
with the persons inhabiting their several dominions ; 

And Whereas there are citizens of the United States residing 
within the territories or dominions of each of the said belligerents 



g£ NEUTRALITY, 1914-1936 

and carrying on commerce, trade, or other business or pursuits 
therein ; 

And Whereas there are subjects of each of the said belligerents 
residing within the territory or jurisdiction of the United States, 
and carrying on commerce, trade, or other business or pursuits 
therein ; 

And Whereas the laws and treaties of the United States, with- 
out interfering with the free expression of opinion and sympathy, 
or with the commercial manufacture or sale of arms or munitions 
of war, nevertheless impose upon all persons who may be within 
their territory and jurisdiction the duty of an impartial neutrality 
during the existence of the contest ; 

And Whereas it is the duty of a neutral government not to 
permit or suffer the making of its waters subservient to the 
purposes of war ; 

Now, Therefore, I, Woodrow Wilson, President of the United 
States of America, in order to preserve the neutrality of the 
United States and of its citizens and of persons within its territory 
and jurisdiction, and to enforce its laws and treaties, and in 
order that all persons, being warned of the general tenor of the 
laws and treaties of the United States in this behalf, and of the 
law of nations, may thus be prevented from any violation of the 
same, do hereby declare and proclaim that by certain provisions 
of the act approved on the 4th day of March, A. D. 1909, com- 
monly known as the "Penal Code of the United States" the fol- 
lowing acts are forbidden to be done, under severe penalties, 
within the territory and jurisdiction of the United States. 
to-wit : — 

1. Accepting and exercising a commission to serve either of the 
said belligerents by land or by sea against the other belligerent. 

2. Enlisting or entering into the service of either of the said 
belligerents as a soldier, or as a marine, or seaman on board of 
any vessel of war, letter of marque, or privateer. 

3. Hiring or retaining another person to enlist or enter himself 
in the service of either of the said belligerents as a soldier, or as a 
marine, or seaman on board of any vessel of war, letter of 
marque, or privateer. 

4. Hiring another person to go beyond the limits or jurisdiction 
of the United States with intent to be enlisted as aforesaid. 

5. Hiring another person to go beyond the limits of the United 
States with intent to be entered into service as aforesaid. 

6. Retaining another person to go beyond the limits of the 
United States with intent to be enlisted as aforesaid. 

7. Retaining another person to go beyond the limits of the 
•United States with intent to be entered into service as aforesaid. 

(But the said act is not to be construed to extend to a citizen 
or subject of either belligerent who, being transiently within the 
United States, shall, on board of any vessel of war, which, at the 
time of its arrival within the United States, was fitted and 
equipped as such vessel of war, enlist or enter himself or hire 
or retain another subject or citizen of the same belligerent, who 
is transiently within the United States, to enlist or enter himself 
to serve such belligerent on hoard such vessel of war, if the 
United States shall then be at peace with such belligerent.) 



USE OF NEUTRAL WATERS 87 

8. Fitting out and arming, or attempting to fit out and arm, 
or procuring to be fitted out and armed, or knowingly being con- 
cerned in the furnishing, fitting out, or arming of any ship or 
vessel with intent that such ship or vessel shall be employed in 
the service of either of the said belligerents. 

9. Issuing or delivering a commission within the territory or 
jurisdiction of the United States for any ship or vessel to the 
intent that she may be employed as aforesaid. 

10. Increasing or augmenting, or procuring to be increased or 
augmented, or knowingly being concerned in increasing or aug- 
menting, the force of any ship of war, cruiser, or other armed 
vessel, which at the time of her arrival within the United States 
was a ship of war, cruiser, or armed vessel in the service of 
either of the said belligerents, or belonging to the subjects of 
either, by adding to the number of guns of such vessels, or by 
changing those on board of her for guns of a larger calibre, or 
by the addition thereto of any equipment solely applicable to war. 

11. Beginning or setting on foot or providing or preparing the 
means for any military expedition or enterprise to be carried on 
from the territory or jurisdiction of the United States against 
the territories or dominions of either of the said belligerents. 

And I do hereby further declare and proclaim that any fre- 
quenting and use of the waters within the territorial jurisdiction 
of the United States by the armed vessels of a belligerent, whether 
public ships or privateers, for the purpose of preparing for hostile 
operations, or as posts of observation upon the ships of war or 
privateers or merchant vessels of a belligerent lying within or 
being about to enter the jurisdiction of the United States, must 
be regarded as unfriendly and offensive, and in violation of that 
neutrality which it is the determination of this government to 
observe ; and to the end that the hazard and inconvenience of such 
apprehended practices may be avoided, I further proclaim and 
declare that from and after the fifth day of August instant and 
during the continuance of the present hostilities between Austria- 
Hungary and Servia, and Germany and Russia and Germany 
and France, no ship of war or privateer of any belligerent shall 
be permitted to make use of any port, harbor, roadstead, or waters 
subject to the jurisdiction of the United States as a station or 
place of resort for any warlike purpose or for the purpose -of ob- 
taining any facilities of warlike equipment ; and no ship of war 
or privateer of either belligerent shall be permitted to sail out of 
or leave any port, harbor, roadstead, or waters subject to the 
jurisdiction of the United States from which a vessel of an 
opposing belligerent (whether the same shall be a ship of war, a 
privateer, or a merchant ship) shall have previously departed 
until after the expiration of at least twenty-four hours from the 
departure of such last-mentioned vessel beyond the jurisdiction 
of the United States. 

If any ship of war or privateer of a belligerent shall, after the 
time this notification takes effect, enter any port, harbor, road- 
stead, or waters of the United States, such vessel shall be required 
to depart and to put to sea within twenty-four hours after her 
entrance into such port, harbor, roadstead, or waters, except in 
case of stress of weather or of her requiring provisions or things 



gg NEUTRALITY, 1914-1936 

necessary for the subsistence of her crew, or for repairs; in any 
of which cases the authorities of the port or of the nearest port 
(as the case may be) shall require her to put to sea as soon as 
possible after the expiration of such period of twenty-four hours, 
without permitting her to take in supplies beyond what may be 
necessary for her immediate use ; and no such vessel which may 
have been permitted to remain within the waters of the United 
States for the purpose of repair shall continue within such port, 
harbor, roadstead, or waters for a longer period than twenty-four 
hours after her necessary repairs shall have been completed, unless 
within such twenty-four hours a vessel, whether ship of war, 
privateer, or merchant ship of an opposing belligerent, shall have 
departed therefrom, in which case the time limited for the depar- 
ture of such ship of war or privateer shall be extended so far as 
may be necessary to secure an interval of not less than twenty- 
four hours between such departure and that of any ship of war, 
privateer, or merchant ship of an opposing belligerent which may 
have previously quit the same port, harbor, roadstead, or waters. 
No ship of war or privateer of a belligerent shall be detained in 
any port, harbor, roadstead, or waters of the United States more 
than twenty-four hours, by reason of the successive departures 
from such port, harbor, roadstead, or waters of more than one 
vessel of an opposing belligerent. But if there be several vessels 
of opposing belligerents in the same port, harbor, roadstead, or 
waters, the order of their departure therefrom shall be so arranged 
as to afford the opportunity of leaving alternately to the vessels 
of the opposing belligerents, and to cause the least detention con- 
sistent with the objects of this proclamation. No ship of war or 
privateer of a belligerent shall be permitted, while in any port, 
harbor, roadstead, or waters within the jurisdiction of the United 
States, to take in any supplies except provisions and such other 
things as may be requisite for the subsistence of her crew, and 
except so much coal only as may be sufficient to carry such vessel, 
if without any sail power, to the nearest port of her own country ; 
or in case the vessel is rigged to go under sail, and may also be 
propelled by steam power, then with half the quantity of coal 
which she would be entitled to receive, if dependent upon steam 
alone, and no coal shall be again supplied to any such ship of war 
or privateer in the same or any other port, harbor, roadstead, or 
waters of the United States, without special permission, until after 
the expiration of three months from the time when such coal may 
have been last supplied to her within the waters of the United 
States, unless such ship of war or privateer shall, since last thus 
supplied, have entered a port of the government to which she 
belongs. 

And I do further declare and proclaim that the statutes and 
the treaties of the United States and the law of nations alike 
require that no person, within the territory and jurisdiction of 
the United States, shall take part, directly or indirectly, in 
the said wars, but shall remain at peace with all of the said 
belligerents, and shall maintain a strict and impartial neutrality. 

And I do hereby enjoin all citizens of the United States, and 
all persons residing or being within the territory or jurisdiction 



RESTRICTION ON AID TO BELLIGERENTS gQ 

of the United States, to observe the laws thereof, and to com- 
mit no act contrary to the provisions of the said statutes or 
treaties or in violation of the law of nations in that behalf. 

And I do hereby warn all citizens of the United States, and all 
persons residing or being within its territory or jurisdiction that, 
while the free and full expression of sympathies in public and 
private is not restricted by the laws of the United States, military 
forces in aid of a belligerent cannot lawfully be originated or 
organized within its jurisdiction ; and that, while all persons 
may lawfully and without restriction by reason of the afore- 
said state of war manufacture and sell within the United States 
arms and munitions of war, and other articles ordinarily known 
as "contraband of war", yet they cannot carry such articles upon 
the high seas for the use or service of a belligerent, nor can 
they transport soldiers and officers of a belligerent, or attempt 
to break any blockade which may be lawfully established and 
maintained during the said wars without incurring the risk of 
hostile capture and the penalties denounced by the law of nations 
in that behalf. 

And I do hereby give notice that all citizens of the United 
States and others who may claim the protection of this gov- 
ernment, who may misconduct themselves in the premises, will 
do so at their peril, and that they can in no wise obtain any 
protection from the government of the United States against 
the consequences of their misconduct. 

In Witness Whereof I have hereunto set my hand and caused 
the seal of the United States to be affixed. 

Done at the city of Washington this fourth day of August in 
the year of our Lord one thousand nine hundred and fourteen 
and of the independence of the United States of America the 
one hundred and thirty-ninth. 

[SEALl WOODROW WlLSON 

By the President : 

William Jennings Bryan, 

Secretary of State. 

[No. 1272.] 

This proclamation was issued "to preserve the neu- 
trality of the United States and of its citizens and of 
persons within its territory and jurisdiction, and to en- 
force its laws and treaties." The proclamation stated 
that the manufacture and sale of "arms and munitions of 
Avar, and other articles ordinarily known as 'contraband 
of war' " was lawful, but that carrying such articles on 
the high sea "for the use or service of a belligerent" 
incurred "the risk of hostile capture and the penalties 
denounced by the law of nations." 

1820—37 7 



gO NEUTRALITY, 1914-1936 

Opinions on neutrality. — In recent years particularly 
since the slogan, "a war to end wars" was current, there 
has been effort to convince the public that the contest 
of 1914r-18 attained this object. If this is a fact, the 
argument would run that since war is no more, then 
neutrality must manifestly be non-existent. 

Another line of writers has pointed to the fact that 
the so-called laws of neutrality did not operate during 
1914-18 with such effectiveness as to commend such laws 
to further respect. These writers would, therefore, sub- 
stitute other types of control. Many would resort to 
collective action against a party declared to be the 
"aggressor" with an expectation that neutrality would 
then disappear as the states of the world would be 
aligned either on the side of the "aggressor" or opposed 
to the "aggressor". 

Another group has contemplated hopefully a civiliza- 
tion in which each state will exercise a self-restraint that 
will make a resort to war no longer possible, which again 
would make neutrality an unnecessary and obsolete 
concept. 

That there should be no more war is certainly a goal 
to be desired, but one for which preparation does not 
seem to be immediately made. States are not repealing 
their neutrality laws, nor have international conventions 
relating to neutrality been denounced. 

Some states are enacting new neutrality legislation, 
often with the expectation that this legislation will tend 
to prevent or to limit hostilities. Other states seem to 
follow the doctrine that as war is international in char- 
acter, rules in regard to neutrality should regard inter- 
national practices. 

Referring to the policy of President Wilson in the 
World War, Newton D. Baker, Secretary of War, 1916- 
18, says in October 1936: 



PRESIDENT WILSON'S POLICY 91 

'President Wilson's real preoccupation throughout this whole 
period was his interest in the restoration of peace and the 
establishment of a world system in which peace would be 
possible. All of his actions are, therefore, to be read with that 
thought in mind." (Foreign Affairs, vol. 15, p. 38.) 

In his correspondence with Senator Stone, President 
Wilson said: 

"To forbid our people to exercise their rights' for fear we might 
be called upon to vindicate them would be a deep humiliation 
indeed." 

Recently there has been some advocacy of the aban- 
donment of neutrality on the ground that any attempt 
to maintain neutrality would bring a state into war. 
Some would maintain neutral rights in regard to per- 
sons, but abandon neutral rights in regard to property. 
Others would make a sort of trade agreement with each 
belligerent at the outbreak of war in regard to what 
might be done without risk, while still others would 
allow full freedom of action to the belligerents during 
the war but make claims for violation of rights at the 
close of the war. 

To such propositions a general reply has been that 
the rights of neutrality have been developed after many 
efforts by states desirous of keeping out of war and of 
exercising their rights, while at the same time conceding 
to the belligerents rights to conduct the war. Those 
maintaining this position decline to admit that because 
one state declares war against another state, all other 
states shall be bound to allow the belligerent states un- 
restrained freedom of action except as relates to neutral 
persons. Some see in the proposal to make agreements 
with belligerents at the outbreak of war the probability 
that the number and scope of such agreements would be 
very restricted and that, if not identical in all cases, 
conflicting claims would be inevitable. As to the propo- 
sition of allowing full freedom of action to the belliger- 
ents in expectation of adjustment of claims on the re- 



92 NEUTRALITY, 1914-1936 

turn of peace, it has been pointed out that such adjust- 
ment has not proven entirely practicable under previ- 
ously existing conditions when the rights of neutrals 
and belligerents were to a considerable degree defined. 

It has been often stated that when the belligerents 
were relatively strong and the neutrals were weak or 
vacillating, the belligerents would endeavor to extend 
their rights by action or by interpretation. This is a 
natural result but does not offer a valid ground for dis- 
carding the law. Similarly the fact that the geog- 
raphy of states differs does not modify the interna- 
tional law applicable though it may modify national 
policy. 

Changiiig neutrality policy. — It is well-known that a 
change in opinion upon or a changed attitude toward 
some principle of international law on the part of one 
nation does not in itself change the law. Nor does a 
misunderstanding or ignorance of the law relieve a state 
of its responsibilities. Even though a state may pub- 
lish in advance its decision to act in a manner not in 
accord with international law, this advanced notice does 
not establish a right to act in this fashion. Many of 
these problems were discussed during the World War, 
1914-18. 

Some argued that the desire for profits led states into 
war and that consequently the elimination of profits 
would keep a state out of war. Since the attempt to 
apply economic sanctions in the Italo-Ethiopian con- 
troversy, 1935-36, there has been less certainty in re- 
gard to this. Others have pointed out that embargoes 
have tended to promote wars and that the effect of appli- 
cation of such a principle is to reduce small states to 
subserviency to neighboring states having large military 
resources. It is pointed out that embargoes operate un- 
equally upon the belligerents; to which it is replied that 
neutrality also operates unequally. 



CHANGING ATTITUDES ON NEUTRALITY 93 

Since the World War, many new panaceas have been 
proposed, discussed, and adopted with enthusiasm, only 
to be abandoned when put to any considerable test. 
Similarly, many of the laws of neutrality failed to 
operate effectively during the World War when weak 
neutrals were unable to defend their rights and when 
strong neutrals were supine or hesitated to maintain 
principles long regarded as well established. 

Neutral rights have since the seventeenth century been 
developing in the direction of restriction upon arbitrary 
action of belligerents. The Armed Neutralities of 1780 
and 1800 afforded examples of this, and the Armed Neu- 
tralities of 1780 helped to make Washington's proclama- 
tion of April 22, 1793, more respected. The failure to 
maintain neutral rights, which have been gained after 
years of effort, naturally makes possible the extension 
of belligerent activities, and the maintenance of neutral 
rights limits the sphere of belligerent action and usually 
the area of the war. 

The Pact of Paris, August 27, 1928, was ratified by 
many states and in this they condemn recourse to war 
for the solution of international controversies and re- 
nounce it as an instrument of national policy. It was 
also hailed as making unnecessary any neutrality laws 
in the future. At the Habana Conference, February 20, 
1928, however, a convention on Maritime Neutrality was 
signed and soon ratified by American states. The Presi- 
dent of the United States proclaimed this convention, 
May 26, 1932. In this convention it is specifically stated 
in Article 15 that : 

"Of the acts of assistance coming from the neutral states, 
and the acts of commerce on the part of individuals, only the 
first are contrary to neutrality." 

The legislation of the United States under the Joint 
Resolution of February 29, 1936, would under this Con- 
vention be based wholly upon national policy. 



94 NEUTRALITY, 1914-1936 

Neutrality in war between Bolivia and Paraguay. — 
One of the most recent occasions upon which neutrality 
proclamations were issued was during the war between 
Bolivia and Paraguay. Some of these referred specifi- 
cally to the Hague Conventions of 1907 and to the 
Declaration of London of 1909. 

Brazil has customarily issued detailed rules in re- 
spect to neutrality. Brazil issued such rules in 1933 
and as a recent expression of a state in close proximity 
to the belligerents these are given in full. 

Translation. 

(Diario Official, May 31, 1933.) 

Decree No. 22,744 of May 23, 1933, orders that complete neu- 
trality shall be observed during the war between Bolivia and 
Paraguay. 

The Chief of the Provisional Government of the United States 
of Brazil, considering that in view of the deeply lamentable fact 
of a war between two American nations, to both of which Brazil 
is closely bound by ties of old friendship, and by those common 
interests, principles, and feelings of an international order 
which constitute the characteristic continental atmosphere of 
America, Brazil is confronted by the imperious necessity of de- 
fining its position as a neutral country : 

Considering, that not being a member of the League of Na- 
tions, Brazil is not bound by the prescriptions of the Pact, and 
that, having to affirm its neutrality, it is guided by international 
law, written and customary, and by the elevated spirit of jus- 
tice and morality which civilization has inculcated in the con- 
science of cultured peoples ; 

Considering, that the General Rules of Neutrality adopted by 
Brazil during the World War. prior to having been drawn into 
it, and which were established by decree No. 11,037 of August 
4, 1914, and completed or modified by subsequent acts, do not 
fully satisfy the requirements of the present moment, because, 
at the time of their publication war in another continent was 
contemplated, the acts of belligerency on the sea being those 
which would most preoccupy the country, whereas now the strife 
is between neighboring and mediterranean nations, problems of 
liver navigation have arisen, and while the international spirit 
has greatly increased during the past years ideas regarding war 
have changed considerbly : 

Considering, that these observations show, further, that the 
ruies regarding neutrality on land and sea, mentioned in Con- 
ventions Nos. 5 and 13 of The Hague, in 1907, published in 
Brazil, which signed them, and approved them by Decree No. 
10,719 of February 4. 1914, although positive international law, 
now demand modifications, inspired by a more firmly based doc- 
trine in order to meet the special situation now presented : 



BRAZILIAN DECREE 95 

Considering, that while it has not yet ratified the Convention 
on Maritime Neutrality which it signed in Habana on February 
20, 1928, 1 together with the Nations represented at the Sixth 
Pan-American Conference, Brazil cannot fail to recognize the 
great value which it has as a concrete expression of the judicial 
opinion of neutrality consecrated by American international law ; 
Considering, that regarding contraband of war. closely related 
to respect for private property, positive law is very deficient ; 
that the Naval Declaration of London, in 1909 has merely doctri- 
nal value ; that the idea of Counselor Paranhos, interpreting 
Brazilian thought, set forth in the communication addressed to 
the powers signatory to the Declaration of Paris, of April 16, 
1856, continues after 76 years have passed, to be aspired to so as 
to complete the work of peace and civilization expressed in the 
maxims then proclaimed and serves better to defend unoffending 
private property ; 

Considering, however, that in order to settle the incidents 
which may arise and to govern the actions of Brazil and the 
Brazilians, there is the general idea of neutrality, which consists 
in the neutral State abstaining from taking part directly or 
indirectly in the action of the belligerents ; in not disturbing in 
any way war operations occurring outside of its territory ; in 
not allowing, within it, acts of hostility ; and in having assured 
the freedom of its peaceful commerce, the expression of its sov- 
ereignty, which war abroad cannot reasonably limit; deducing 
from this last proposition that only the normal purpose of the 
merchandise and its destiny, can influence its classification as 
hostile or innocent ; 

Considering, that for years the idea has been developing of 
placing the people in a more decisive position in favor of peace, 
which is the normal state of civilization, but that present condi- 
tions have not permitted them to obtain positive results in the 
sense of preventing war and lending to pacific activities the 
preeminence to which, undoubtedly they are entitled, the princi- 
ples above mentioned exist ; 

Considering, finally, that the Federal Government has received 
official notification from the Paraguayan Government that Para- 
guay is in a state of war with Bolivia : 

Resolves, that while the said state of war lasts the Rules of 
Neutrality hereto annexed, signed by the Minister of State for 
Foreign Affairs, shall be strictly observed and complied with by 
the Brazilian authorities. 

Rio de Janeiro, 23rd of May, 1933, 112th of Independence, and 
45th of the Republic. 

Gettjlio Vargas 

Afranio de Meixo Franco 

augusto ignacio do espirito sando cardoso 

Protogenes Pereira Guimaraes 



1 Ratified by the United States and proclaimed May 2r>. 1932, sep Naval 
War College, 1935 International Law Situations. Appendix I. p. 115. 



9(3 NEUTRALITY, 1914-1936 

Rules of Neutrality of Brazil 

Article 1. The residents of the United States of Brazil, na- 
tionals or foreigners, should abstain from any participation or 
aid in favor of the belligerents and should not practice any act 
that may he considered as hostility toward one of the powers 
at war. 

Article 2. The belligerents shall not be permitted to promote 
in Brazil the enlistment of their nationals, of Brazilian citizens, 
or of nationals of other countries, to serve in their armed forces. 

Article 3. The agents of the Federal Government or of the 
States of Brazil are forbidden to export or to favor directly or 
indirectly the remittance of war material to either of the 
belligerents. 

Article 4. The provision of the preceding article does not 
prevent the free transit, river or land, assured by treaties in 
effect between Brazil and either of the belligerents. 

Article 5. It is forbidden to the belligerents to make on the 
land, river, or maritime territory of the United States of Brazil, 
a base of war operations or to practice acts which may constitute 
a violation of Brazilian neutrality. 

Sole paragraph. Disrespect of neutrality is considered an 
illicit international act, for which the belligerent will answer, it 
being permitted however to the neutral State to defend its 
juridical position. 

Article 6. The Federal Government shall use the means 
at its disposal to prevent the equipment or arming of any vessel 
which it may have reasonable cause to suppose is destined to 
engage in hostile operations against one of the belligerents. It 
shall exercise the same vigilance to prevent the departure from 
its territory of any vessel destined to cruise or engage in hostile 
operations and which has been, in waters under its jurisdiction, 
adapted wholly or in part to the uses of war. 

Article 7. In the ports and anchorages of the United States 
of Brazil, the war vessels of the belligerents, without in any way 
increasing their military force, may repair, to the extent Indis- 
pensable to safe navigation, the damages that they may have 
suffered. 

The Brazilian naval authority shall verify the nature of the 
repairs to be made and which should be made with the greatest 
speed possible. 

Article 8. The vessels referred to in the preceding article 
may only supply themselves in the ports and anchorages of 
Brazil : 

(1) To complete their normal provision of food in times of 
peace ; 

(2) To receive fuel, with which to reach the nearest port of 
their country, or to complete their stores, properly stated. 

Article 9. The war vessels of the belligerents, that take on 
fuel on a Brazilian port, cannot renew their provisions at the 
same or another Brazilian port until three months later. 

Article 10. The vessels of the belligerents cannot use the ports, 
anchorages, and territorial waters of Brazil to increase their 
military supplies, or to complete their crews. They may, how- 
ever, utilize the services of the pilots of the country. 



BRAZILIAN RULES, 19:W 97 

Article 11. The provisions of Articles 7 to 9 do not apply to 
hospital ships, or to those exclusively employed upon scientific, 
religious, or philanthropic missions. 

Article 12. When belligerent vessels of war are simultaneously 
present in a Brazilian port or anchorage, at least forty-eight 
hours should elapse between the departure of one of them and 
of the adversary. 

The order of departure shall be determined by that of arrival. 
unless the ship that entered first should be included in one of 
the cases in which an extended stay is allowed. 

A belligerent war vessel cannot leave the Brazilian port or 
anchorage where it may be until forty-eight hours after the 
departure of a merchant ship flying the flag of her adversary. 

Article 13. The war vessels of the belligerents may normally 
delay at a Brazilian port or anchorage forty-eight hours. A 
longer stay will be allowed them : 

(1) When the repairs indispensable to the continuance of 
their journey cannot be finished in less time. 

(2) When there is a material impediment to their departure. 
The Federal Government shall determine, according to cir- 
cumstances, the length of the delay of the vessel. 

Article 14. If, in spite of notification made by the property 
authority, the belligerent war vessel does not leave the Brazilian 
port, the Federal Government shall take the measures considered 
necessary to render the ship incapable of navigating for the 
duration of the war. 

Should the commander of the belligerent vessel not wish to 
heed the notification received, for an unacceptable reason, the 
Federal Government shall order its military authorities to use 
force, so that its decision shall be complied with. 

Article 15. When a belligerent vessel has to be detained in 
Brazil the officers and crew shall also be held. 

The officers and the crew may be lodged in another ship or 
on land and may be subjected to the restrictive measures which 
seem necessary to impose. However, there will be kept on 
board the war vessel the men required for its preservation. 
The officers may remain at liberty, by signing a written obliga- 
tion under word of honor that they will not leave the place 
designated on Brazilian territory, without authorization from 
the Minister of Marine. 

Article 16. The captures made by either of the belligerents 
may only be brought to a Brazilian port on account of failure 
of navigation, bad weather, lack of fuel or food supplies, or to 
discharge merchandise destined for Brazil. 

Article 17. The war vessels, which, being pursued by the 
enemy, and which, to avoid immediate attack, take refuge in 
a Brazilian port, will be detained there and disarmed. 

Article 18. Troops or isolated soldiers who cross the frontiers 
of Brazil shall be disarmed or interned far from the seat of 
war. The officers may remain at liberty under the conditions 
established in Article 15, second part, in fine, the Minister of 
War being in this case the proper authority to permit the retire- 
ment of those interned from the place designated for their 
residence. 



98 



NEUTRALITY. 1914-1936 



Abticle 19. Escaped prisoners who take refuge in Brazil will 
remain at liberty, a place of residence, however, may be desig- 
nated for them when this measure appears necessary. 

Abticle 20. Interned belligerents shall be treated according 
to the precepts of international law. 

Article 21. Belligerent airplanes may not fly over the territory 
or jurisdictional waters of Brazil without previous authorization. 
Those not authorized that land on Brazilian territory or waters 
will be detained. 

Military airplanes will not be given authorization to fly over 
Brazilian territory. 

Rio de Janeiro, May 23, 1933. 

Afranio de Mello Franco. 

Ministry of foreign affairs. 

National and International neutrality laws. — A state 
may at its discretion restrict the range of action of its 
nationals when it is a neutral. Domestic neutrality laws 
do not necessarily have any effect upon the international 
law of neutrality either in limiting or extending its 
scope. The nationals of a state are responsible for the 
observance of its laws. In 1912 the Acting Secretary of 
State, after referring to the Hague Conventions of 1907 
in regard to neutrality and to the general laws of neu- 
trality, said of the American neutrality laws: 

"The situation is somewhat different, however, with reference 
to the so-called neutrality statutes which have been enacted by 
this Government, which, going beyond the provisions of inter- 
national law, as set forth in the above-quoted extracts of the 
convention, do make illegal certain acts specified in the statutes, 
even when no state of belligerency exists, such acts being 
directed against the established government of a country with 
which this Government is at peace. But, as your excellency 
will at once recognize, and as has been heretofore declared by 
this Department, the duties of neutrality under the law of 
nations can not be either expanded or contracted by national 
legislation. The United States, for instance, has here in exces- 
sive caution required from its citizens duties more stringent 
than those imposed by the law of nations ; but those statutes, 
while they may make offenders penally liable in this country 
do not themselves put either these persons or this Government 
under any extraterritorial obligation. Our own statutes bind 
only our own Government and citizens and those within our 
jurisdiction. If they impose on us a larger duty than is im- 
posed upon us by international law, they do not correspondingly 
enlarge our duties to foreign nations." (Foreign Relations. 
I". S.. -1012. p. 741.) 



ATTITUDE ON EXPORT OF ARMS 99 

Act of Congress, March 1.^ 1912. — The United States 
lias found it desirable to prohibit exportation of arms or 
munitions of war even when a condition of domestic 
violence and not of war exists. The Act of Congress of 
March 14, 1912, provides: 

"That whenever the President shall find that in any American 
country conditions of domestic violence exist which are promoted 
by the use of arms or munitions of war procured from the 
United States, and shall make proclamation thereof, it shall be 
unlawful to export except under such limitations and exceptions 
as the President shall prescribe any arms or munitions of war 
from any place in the United States to such country until 
otherwise ordered by the President or by Congress." (37 Stat. 
630.) 

Neutrality and contraband, 19 H. — In 1914 there were 
new problems arising owing to changing conditions in 
the conduct of war. These came in increasing number 
to the Department of State, and a general circular was 
issued. 

Circular of the Department of State of the United States with 
Reference to Neutrality and Trade in Contraband. October 15, 
19U. 

The Department of State has received numerous inquiries from 
American merchants and other persons as to whether they could 
sell to governments or nations at war contraband articles without 
violating the neutrality of the United States, and the Department 
has also received complaints that sales of contraband were being 
made on the apparent supposition that they were unneutral acts 
which this Government should prevent. 

In view of the number of communications of this sort which 
have been received it is evident that there is a widespread mis- 
apprehension among the people of this country as to the obliga- 
tions of the United States as a neutral nation in relation to trade 
in contraband and as to the powers of the executive branch of the 
government over persons who engage in it. For this reason it 
seems advisable to make an explanatory statement on the subject 
for the information of the public. 

In the first place it should be understood that, generally speak- 
ing, a citizen of the United States can sell to a belligerent gov- 
ernment or its agent any article of commerce which he pleases. 
He is not prohibited from doing this by any rule of Internationa] 
law, by any treaty provisions, or by any statute of the United 
States. It makes no difference whether the articles sold are exclu- 
sively for war purposes, such as firearms, explosives, etc., or are 
foodstuffs, clothing, horses, etc., for the use of the army or navy 
of the belligerent. 



100 NEUTRALITY, 1914-11):?*. 

Furthermore, a neutral government is not compelled by inter- 
national law, by treaty, or by statute to prevent these sales to a 
belligerent. Such sales, therefore, by American citizens do not 
in the least affect the neutrality of the United States. 

It is true that such articles as those mentioned are considered 
contraband and are. outside the territorial jurisdiction of a neu- 
tral nation, subject to seizure by an enemy of the purchasing gov- 
ernment, but it is the enemy's duty to prevent the articles reach- 
ing their destination, not the duty of the nation whose citizens 
have sold them. If the enemy of the purchasing nation happens 
for the time to be unable to do this that is for him one of the 
misfortunes of war ; the inability, however, imposes on the neutral 
government no obligation to prevent the sale. 

Neither the President nor any executive department of the 
Government possesses the legal authority to interfere in any way 
with trade between the people of this country and the territory 
of the belligerent. There is no act of Congress conferring such 
authority or prohibiting traffic of this sort with European nations, 
although in the case of neighboring American Republics Congress 
has given the President power to proclaim an embargo on arms 
and ammunition when in his judgment it would tend to prevent 
civil strife. 

For the Government of the United States itself to sell to a 
belligerent nation would be an unneutral act, but for a private 
individual to sell to a belligerent any product of the United States 
is neither unlawful nor unneutral, nor within the power of the 
Executive to prevent or control. 

The foregoing remarks, however, do not apply to the outfitting 
or furnishing of vessels in American ports or of military expedi- 
tions on American soil in aid of a belligerent. These acts are 
prohibited by the neutrality laws of the United States. 

Department of State. 
October 7 J. Wl ',. 

(Foreign Relations. U. S.. 1914 Supplement, p. 573.) 

Reply of Depart me at of State on arms embargo. — Tn 

the correspondence between Senator Stone, Chairman of 

the Senate Committee on Foreign Relations, and the 

Secretary of State in January 1915, questions were raised 

in regard to the attitude of the Government of the United 

States upon restrictions upon trade in contraband. 

On January 8, 1915, Senator Stone writes: 

"Dear Mr. Secretary: As you are aware, frequent complaints 
or charges are made in one form or another through the press 
that this Government has shown partiality to Great Britain, 
France, and Russia as against Germany and Austria during the 
present war between those powers; in addition to which I have 
received numerous letters to the same effect from sympathizers 
With Germany and Austria. (Foreign Relations, U. S., 1014, 
Supplement, p. vi.) 



QUESTIONS AND REPLIES 101 

Among the other complaints to which Senator Stone 
calls attention are : 

"4. Submission without protest to English violations of the 
rules regarding absolute and conditional contraband, as laid 
down — 

"(a) In the Hague conventions; 

"(b) In international law; 

"(c) In the Declaration of London. 

"5. Submission without protest to inclusion of copper in the 
list of absolute contraband. 

"6. Submission without protest to interference with American 
trade to neutral countries — 

"(a) In conditional contraband; 

"(b) In absolute contraband. 

"7. Submission without protest to interruption of trade in 
conditional contraband consigned to private persons in Germany 
and Austria, thereby supporting the policy of Great Britain to 
cut off all supplies from Germany and Austria. 

"8. Submission to British interruption of trade in petroleum, 
rubber, leather, wool, etc. 

"9. No interference with the sale to Great Britain and her 
allies of arms, ammunition, horses, uniforms, and other muni- 
tions of war. although such sales prolong the war. 

"10. No suppression of sale of dumdum bullets to Great Britain 
i Ibid., p. vii.) 

To these the Secretary of State replied seriatim on 
January 20, 1915. 

(4) Submission without protest to British violations of the rules 
regarding absolute and conditional contraband as laid down in 
The Hague conventions, the declaration of London, and inter- 
national law. 

There is no Hague convention which deals with absolute or 
conditional contraband, and, as the declaration of London is 
not in force, the rules of international law only apply. As to 
the articles to be regarded as contraband, there is no general 
agreement between nations. It is the practice for a country, 
either in time of peace or after the outbreak of war, to declare 
the articles which it will consider as absolute or conditional 
contraband. It is true that a neutral Government is seriously 
affected by this declaration, as the rights of its subjects or 
citizens may be impaired. But the rights and interests of bel- 
ligerents and neutrals are opposed in respect to contraband 
;irticles and trade and there is no tribunal to which questions of 
difference may be readily submitted. 

The record of the United States in the past is not free from 
criticism. When neutral this Government has stood for a re- 
stricted list of absolute and conditional contraband. As a bellig- 
erent, we have contended for a liberal list, according to our con- 
ception of the necessities of the case. 



202 NEUTRALITY, 1914-1936 

The United States has made earnest representations to Great 
Britain in regard to the seizure and detention by the British 
authorities of all American ships or cargoes bona fide destined 
to neutral ports on the ground that such seizures and detentions 
were contrary to the existing rules of international law. It will 
be recalled, however, that American courts have established vari- 
ous rules bearing on these matters. The rule of "continuous 
voyage' has been not only asserted by American tribunals but 
extended by them. They have exercised the right to determine 
from the circumstances whether the ostensible was the real desti- 
nation. They have held that the shipment of articles of contra- 
band to a neutral port "to order," from which, as a matter of 
fact, cargoes had been transshipped to the enemy, is corroborative 
evidence that the cargo is really destined to the enemy instead 
of to the neutral port of delivery. It is thus seen that some of 
the doctrines which appear to bear harshly upon neutrals at the 
present time are analogous to or outgrowths from policies adopted 
by the United States when it was a belligerent. The Govern- 
ment therefore can not consistently protest against the application 
of rules which it has followed in the past, unless they have not 
been practiced as heretofore. 

(5) Acquiescence without protest to the inclusion of copper and 
other articles in the British lists of absolute contraband. 

The United States has now under consideration the question of 
the right of a belligerent to include "copper unwrought" in its 
list of absolute contraband instead of in its list of conditional 
contraband. As the Government of the United States has in the 
past placed "all articles from which ammunition is manufac- 
tured" in its contraband list, and has declared copper to be among 
such materials, it necessarily finds some embarrassment in dealing 
with the subject. 

Moreover, there is no instance of the United States acquiescing 
in Great Britain's seizure of copper shipments. In every case 
in which it has been done vigorous representations have been 
made to the British Government, and the representatives of the 
United States have pressed for the release of the shipments. 

(6 Sitbmission without protest to interference with American 
trade to neutral countries in conditional and absolute contraband. 

The fact that the commerce of the United States is interrupted 
by Great Britain is consequent upon the superiority of her navy 
on the high seas. History shows that whenever a country has 
possessed that superiority our trade has been interrupted and 
that few articles essential to the prosecution of the war have 
been allowed to reach its enemy from this country. The depart- 
ment's recent note to the British Government, which has been 
made public, in regard to detentions and seizures of American 
vessels and cargoes, is a complete answer to this complaint. 

Certain other complaints appear aimed at the loss of profit 
in trade, which must Include at least in part trade in contra- 
band with Germany : while other complaints demand the prohibi- 
tion of trade in contraband, which appear to refer to trade with 
the allies. 



INTERFERENCE WITH TRADE 1Q3 

(7) Submission, without protest to interruption of trade in 
conditional contraband consigned to private persons in Germany 
and Austria, thereby supporting the policy of Great Britain 
to cut off all supplies from Germany and Austria. 

As no American vessel so far as known has attempted to carry 
conditional contraband to Germany or Austria-Hungary, no 
ground of complaint has arisen out of the seizure or condemna- 
tion by Great Britain of an American vessel with a belligerent 
destination. Until a case arises and the Government has taken 
action upon it. criticism is premature and unwarranted. The 
United States in its note of December 28 to the British Govern- 
ment strongly contended for the principle of freedom of trade in 
articles of conditional contraband not destined to the belligerent's 
forces. 

(8) Submission to British interference icrith trade in petroleum, 
rubber, leather, wool, etc. 

Petrol and other petroleum products have been proclaimed by 
Great Britain as contraband of war. In view of the absolute 
necessity of such products to the use of submarines, aeroplanes, 
and motors, the United States Government has not yet reached 
the conclusion that they are improperly included in a list of 
contraband. Military operations to-day ore largely a question of 
motive power through mechanical devices. It is therefore difficult 
to argue successfully against the inclusion of petroleum among 
the articles of contraband. As to the detention of cargoes of 
petroleum going to neutral countries, this Government has thus 
far successfully obtained the release in every case of detention or 
seizure which has been brought to its attention. 

Great Britain and France have placed rubber on the absolute 
contraband list and leather on the conditional contraband list. 
Rubber is extensively used in the manufacture and operation 
of motors and, like petrol, is regarded by some authorities as 
essential to motive power to-day. Leather is even more widely 
used in cavalry and infantry equipment. It is understood that 
both rubber and leather, together with wool, have been em- 
bargoed by most of the belligerent countries. It will be recalled 
that the United States has in the past exercised the right of em- 
bargo upon exports of any commodity which might aid the 
enemy's cause. 

(9) The United States has not interfered with the sale to 
Great Britain and her allies of arms, ammunition, horses, uni- 
forms, and other munitions of war, although such sales prolong 
the conflict. 

There is no power in the Executive to prevent the sale of 
ammunition to the belligerents. 

The duty of a neutral to restrict trade in munitions of war 
has never been imposed by international law or by municipal 
statute. It has never been the policy of this Government to pre- 
vent the shipment of arms or ammunition into belligerent terri- 
tory, except in the case of neighboring American Republics, and 
then only when civil strife prevailed. Even to this extent the 
belligerents in the present conflict, when they were neutrals, have 
never, so far as the records disclose, limited the sale of munitions; 



104 NEUTRALITY, 1914-1936 

of war. It is only necessary to point to the enormous quantities 
of arms and ammunition furnished by manufacturers in Germany 
to the belligerents in the Russo-Japanese war and in the recent 
Balkan wars to establish the general recognition of the propriety 
of the trade by a neutral nation. 

It may be added that on the 15th of December last the German 
ambassador, by direction of his Government, presented a copy 
of a memorandum of the Imperial German Government which, 
among other things, set forth the attitude of that Government 
toward traffic in contraband of war by citizens of neutral coun- 
tries. The Imperial Government stated that 'under the general 
principles of international law, no exception can be taken to neu- 
tral States letting war material go to Germany's enemies from 
or through neutral territory," and that the adversaries of Ger- 
many in the present war are, in the opinion of the Imperial 
Government, authorized to "draw on the United States contra- 
band of war and especially arms worth billions of marks." 
These principles, as the ambassador stated, have been accepted 
by the United States Government in the statement issued by the 
Department of State on October 15 last, entitled "Neutrality and 
trade in contraband." Acting in conformity with the propositions 
there set forth, the United States has itself taken no part in 
contraband traffic, and has. so far as possible, lent its influence 
toward equal treatment for all belligerents in the matter of pur- 
chasing arms and ammunition of private persons in the United 
States. 

(10) The United States has not suppressed tin sale of dumdum 
bullets to Great Britain. 

On December 5 last the German ambassador addressed a note 
to the department, stating that the British Government had 
ordered from the Winchester Repeating Arms Co. 20,000 "riot 
guns," model 1897, and 50,000.000 "buckshot cartridges" for use 
in such guns. The department replied that it saw a published 
statement of the Winchester Co., the correctness of which the 
company has confirmed to the department by telegraph. In this 
statement the company categorically denies that it has received 
an order for such guns and cartridges from or made any sales 
of such material to the British Government, or to any other 
Government engaged in the present war. The ambassador further 
called attention to "information, the accuracy of which is not to 
be doubted," that 8,000,000 cartridges fitted with "mushroom 
bullets" had been delivered since October of this year by the 
Union Metallic Cartridge Co. for the armament of the English 
army. In reply the department referred to the letter of Decem- 
ber 10, 1914. of the Remington Arms- Union Metallic Cartridge 
Co., of New York, to the ambassador, called forth by certain 
newspaper reports of statements alleged to have been made by 
the ambassador in regard to the sales by that company of soft- 
nosed bullets. 

From this letter, a copy of which was sent to the department 
by the company, it appears that instead of 8,000,000 cartridges 
having been sold, only a little over 117,000 were manufactured and 
H 19.000 were sold. The letter further asserts that these cartridges 



RESTRICTIONS ON CLEARANCE, 1913 1Q5 

were made to supply a demand for a better sporting cartridge 
with a soft-nosed bullet than had been manufactured theretofore, 
and that such cartridges can not be used in the military rifles 
of any foreign powers. The company adds that its statements 
can be substantiated and that it is ready to give the ambassador 
any evidence that he may require on these points. The depart- 
ment further stated that it was also in receipt from the com- 
pany of a complete detailed list of the persons to whom these 
cartridges were sold, and that from this list it appeared that 
the cartridges were sold to firms in lots of 20 to 2,000 and one 
lot each of 3,000. 4,000, and 5,000. Of these only 960 cartridges 
went to British North America and 100 to British East Africa. 

The department added that, if the ambassador could furnish, 
evidence that this or any other company is manufacturing and 
selling for the use of the contending armies in Europe cartridges 
whose use would contravene The Hague conventions, the depart- 
ment would be glad to be furnished with this evidence, and that 
the President would, in case any American company is shown 
to be engaged in this traffic, use his influence to prevent, so far 
as possible, sales of such ammunition to the powers engaged in 
the European war, without regard to whether it is the duty 
of this Government, upon legal or conventional grounds, to 
take such action. 

The substance of both the ambassador's note and the depart- 
ment's reply have appeared in the press. 

The department has received no other complaints of alleged 
sales of dumdum bullets by American citizens to belligerent 
Governments. (Ibid., p. ix.) 

Restrictions on clearance. — There were attempts to use 
the ports and waters of the United States as bases, and 
Congress took cognizance of this by adopting a Joint 
Resolution : 

"Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That, from and 
after the passage of this resolution, and during the existence of 
a war to which the United States is not a party, and in order to 
prevent, the neutrality of the United States from being violated 
by the use of its territory, its ports, or its territorial waters as 
the base of operations for the armed forces of a belligerent, con- 
trary to the obligations imposed by the law of nations, the trea- 
ties to which the United States is a party, or contrary to the 
statutes of the United States, the President be. and he is hereby, 
authorized and empowered to direct the collectors of customs 
under the jurisdiction of the United States to withhold clearance 
from any vessel, American or foreign, which he has reasonable 
cause to believe to be about to carry fuel, arms, ammunition, 
men, or supplies to any warship, or tender, or supply ship of a 
belligerent nation, in violation of the obligations of the United 
States as a neutral nation. 
1820—37 S 



205 NEUTRALITY, 1914-1936 

In case any such vessel shall depart or attempt to depart from 
the jurisdiction of the United States without clearance for any 
of the purposes above set forth, the owner or master or person or 
persons having charge or command of such vessel shall severally 
be liable to a fine of not less than $2,000 nor more than $10,000, 
or to imprisonment not to exceed two years, or both, and, in addi- 
tion, such vessel shall be forfeited to the United States. 

That the President of the United States be, and he is hereby, 
authorized and empowered to employ such part of the land or 
naval forces of the United States as shall be necessary to carry 
out the purposes of this resolution. 

That the provisions of this resolution shall be deemed to extend 
to all land and water, continental or insular, within the jurisdic- 
tion of the United States. 

Approved, March 4, 1915." 

(38 Stat. 1226.) 

German attitude on trade in arms, 1915. — On April 
4- , 1915, the German Ambassador delivered to the Amer- 
ican Secretary of State a memorandum on German- 
American trade and the question of delivery of arms. 
He refers to the British Orders-in-Council as "one- 
sidedly" modifying the principles of international law 
and leading to unlawful interference with American 
commerce. He then says: 

"Then there is also the attitude of the United States in the 
question of the exportation of arms. The Imperial Government 
feels sure that the United States Government will agree that in 
questions of neutrality it is necessary to take into consideration 
not only the formal aspect of the case, but also the spirit to 
which the neutrality is carried out. 

"The situation in the present war differs from that of any 
previous war. Therefore any reference to arms furnished by 
Germany in former wars is not justified, for then it was not a 
question whether war material should be supplied to the bellig- 
erents, but who should supply it in competition with other 
nations. In the present war all nations having a war material 
industry worth mentioning are either involved in the war them- 
selves or are engaged in perfecting their own armaments, and 
have therefore laid an embargo against the exportation of war 
material. The United States is accordingly the only neutral 
country in a position to furnish war materials. The conception 
of neutrality is thereby given a new purport, independently of 
the formal question of hitherto existing law. In contradiction 
thereto, the United States is building up a powerful arms indus- 
try in the broadest sense, the existing plants not only being 
worked but enlarged by all available means, and new ones built. 
The international conventions for the protection of the rights of 
neutral nations doubtless sprang from the necessity of protect- 



TRAFFIC IN ARMS, 1915 107 

mg the existing industries of neutral nations as far as possible 
from injury to their business. But it can in no event be in 
accordance with the spirit of true neutrality if, under the pro- 
tection of such international stipulations, an entirely new indus- 
try is created in a neutral state, such as is the development of 
the arms industry in the United States, the business whereof, 
under the present conditions, can benefit only the belligerent 
powers. / 

"This industry is actually delivering goods only to the enemies 
of Germany. The theoretical willingness to supply Germany 
also, if shipments thither were possible, does not alter the case. 
If it is the will of the American people that there shall be a 
true neutrality, the United States will find means of preventing 
this one-sided supply of arms or at least of utilizing it to pro- 
tect legitimate trade with Germany, especially that in food- 
stuffs." (Foreign Relations, U. S. 1915, Supplement, p. 159.) 

Attitude of United States, August 1915. — In a long 
note to be presented by the American Ambassador in 
Austria-Hungary to the Foreign Office, the Secretary 
of State expressed surprise that it could be thought 
that changing conditions during a war could affect 
neutral traffic in arms and ammunition or that neutral- 
ity implied an obligation to equalize trade opportunities. 
The Secretary of State maintained that to close Amer- 
ican markets to either belligerent would be contrary to 
the principles for which the United States had stood. 

The American Secretary of State further said : 

"But, in addition to the question of principle, there is a prac- 
tical and substantial reason why the Government of the United 
States has from the foundation of the Republic to the present 
time advocated and practiced unrestricted trade in arms and 
military supplies. It has never been the policy of this country 
to maintain in time of peace a large military establishment or 
stores of arms and ammunition sufficient to repel invasion by 
a well-equipped and powerful enemy. It has desired to remain 
at peace with all nations and to avoid any appearance of 
menacing such peace by the threat of its armies and navies. 
In consequence of this standing policy the United States would, 
in the event of attack by a foreign power, be at the outset 
of the war seriously, if not fatally, embarrassed by the lack of 
arms and ammunition and by the means to produce them in 
sufficient quantities to supply the requirements of national de- 
fense. The United States has always depended upon the right 
and power to purchase arms and ammunition from neutral 
nations in case of foreign attack. The right, which it claims 
for itself, it cannot deny to others. 



108 



NEUTRALITY, 1914-1936 



"A nation whose principle and policy it is to rely upon 
international obligations and international justice to preserve 
its politieal and territorial integrity, might become the prey 
of an aggressive nation whose policy and practice it is to in- 
crease its military strength during times of peace with the 
design of conquest, unless the nation attacked can, after war 
had been declared, go into the markets of the world and pur- 
chase the means to defend itself against the aggressor. 

"The general adoption by the nations of the world of the 
theory that neutral powers ought to prohibit the sale of arms 
and ammunition to belligerents would compel every nation to 
have in readiness at all times sufficient munitions of war to 
meet any emergency which might arise and to errect and main- 
tain establishments for the manufacture of arms and ammuni- 
tions sufficient to supply the needs of its military and naval 
forces throughout the progress of a war. Manifestly the 
application of this theory would result in every nation be- 
coming an armed camp, ready to resist aggression and tempted 
to employ force in asserting its rights rather than appeal to 
reason and justice for the settlement of international disputes. 

"Perceiving, as it does, that the adoption of the principle 
that it is the duty of a neutral to prohibit the sale of arms 
and ammunition to a belligerent during the progress of a war 
would inevitably give the advantage to the belligerent which 
had encouraged the manufacture of munitions in time of peace 
and which had laid in vast stores of arms and ammunition 
in anticipation of war, the Government of the United States is 
convinced that the adoption of the theory would force militarism 
on the world and work against that universal peace which is 
the desire and purpose of all nations which exalt justice and 
righteousness in their relations with one another." (Foreign 
Relations, U. S., 1915 Supplement, p. 790.) 

Embargoes on arms in 1915. — On August 30. 1915, 
the Secretary of State by a circular telegram to Amer- 
ican diplomatic officers in European neutral countries 
made inquiry in regard to embargoes. 

"Please discreetly ascertain and telegraph whether the country 
to which you are accredited has embargoed arms and ammuni- 
tion during the present war in order to conserve them for home 
use. or not to incur enmity of belligerents, or to maintain neu- 
trality, and whether the sale of arms and ammunition would 
have been more than a negligible factor in supplying the 
belligerents. (Ibid., p. 801.) 

Lansing." 

The replies showed that embargoes on arms are often 
imposed for domestic reasons. Minister Van Dyke re- 
ported September 4. 1915. that the "Netherlands had 



GEOGRAPHICAL ADVANTAGES 109 

embargoed all munitions to retain them for home use." 

(Ibid., p. 803.) This was a common reason given, 
though occasionally "to avoid enmity'' was given also. 

Portugal had not embargoed arms, nor had Spain, 
though Spain's policy was "to maintain absolute neu- 
trality and conserve supplies." Italy recognized that 
sale was lawful under the Hague Convention. 

Up to September 16, 1915, it appeared that none of 
the South American states except Brazil had embargoed 
arms and ammunition. 

China prohibited private commerce in contraband. 

Attitude on munition* sale, 1016. — Numerous com- 
plaints were made to the Department of State in regard 
to the failure of the Government to restrict or forbid 
exports of munitions. It was pointed out to the Depart- 
ment of State that the geographical relations of the 
belligerents in Europe tended to make the transit of arms 
from the United States more easy to the Allied than to 
the Central Powers. It was intimated that to permit 
freedom of trade in munitions, etc., would under these 
conditions be unneutral. The Counselor of the Depart- 
ment of State, Mr. Polk, on August 18, 1916, said of this 
matter : 

"If any American citizens, partisans of Germany and Austria- 
Hungary, feel that this administration is acting in a way injurious 
to the cause of those countries, this feeling results from the fact 
that on the high seas the German and Austro-Hungarian naval 
power has from the commencement of the present war been 
inferior to the British. It is the business of a belligerent oper- 
ating on the high seas, not the duty of a neutral, to prevent all 
trade in contraband from reaching an enemy. Those in this 
country who sympathize with Germany and Austria-Hungary ap- 
pear to assume that some obligation rests upon this Government 
in the performance of its neutral duty to prevent all trade in 
contraband, and thus to equalize the difference due to the relative 
naval strength of the belligerents. No such obligation exists. It 
would be an unneutral act on the part of this Government to 
adopt such a policy if the Executive had the power to do so. If 
Germany and Austria-Hungary cannot import contraband from 
this country, it is not, because of that fact, the duty of the 



HO NEUTRALITY. 1914-1936 

United States to close its markets to the Allies. The markets of 
this country are open upon equal terms to all the world, to every 
nation, belligerent or neutral. 

'"There is no power in the Executive to prevent the sales of 
munitions of war to the belligerents. The duty of a neutral to 
restrict trade in munitions of war has never been imposed by 
international law or municipal statute. It has never been the 
policy of this Government to prevent the shipment of arms or 
ammunition into belligerent territory, except in the case of 
neighboring American republics, and then only when civil strife 
prevailed. Even to this extent the belligerents in the present 
conflict, when they were neutrals, have never, so far as the 
records disclose, limited the sale of munitions of war. It is only 
necessary to point to the enormous quantities of arms and ammu- 
nitions furnished by manufacturers in Germany to the belligerents 
in the Russo-Japanese war and the recent Balkan wars to estab- 
lish the general recognition of the propriety of the trade by a 
neutral nation. 

"It may be added that on the 15th of December, 1914, the 
German Ambassador, by direction of his Government, presented a 
copy of a memorandum of the Imperial German Government 
which, among other things, set forth the attitude of that Govern- 
ment toward traffic in contraband of war by citizens of neutral 
countries. The Imperial Government stated that 'under the gen- 
eral principles of international law, no exception can be taken 
to neutral states letting war material go to Germany's enemies 
from or through neutral territory.'" (Foreign Relations, U. S., 
1916 Supplement, p. 9.) 

Act of Congress, June 15, 1917. — The Act of Congress 
of March 14, 1912, was elaborated in later acts as in that 
of June 15, 1917, which, under conditions of war, pro- 
vided for a general enforcement : 

''Whenever an attempt is made to export or ship from or take 
out of the United States, any arms or munitions of war, or other 
articles, in violation of law, or whenever there shall be known 
or probable cause to believe that any such arms or munitions 
of war, or other articles, are being or are intended to be exported, 
or shipped from, or taken out of the United States, in violation 
of law, the several collectors, naval officers, surveyors, inspec- 
tors of customs, and marshals, and deputy marshals of the 
United States, and every other person duly authorized for the 
purpose by the President, may seize and detain any articles or 
munitions of war about to be exported or shipped from, or taken 
out of the United States, in violation of law, and the vessels or 
vehicles containing the same, and retain possession thereof until 
released or disposed of as hereinafter directed. If upon due 
inquiry as hereinafter provided, the property seized shall appear 
to have been about to be so unlawfully exported, shipped from, 
or taken out of the United States, the same shall be forfeited to 
the United States." (40 Stat. 223.) 



SPECIAL RESTRICTIONS ON EXPORTS H\ 

In this Act naval officers are specifically authorized to 
see that the law is observed. 

Presidents have from time to time proclaimed that 
conditions demand the enforcements of these acts. 

Brussels protocol, 1908. — On July 22, 1908, and refer- 
ring to the General Act of the Conference of Brussels of 
July 2, 1890, a protocol restricting the export of war 
materials to certain African areas was concluded. The 
parties to the protocol were Great Britain, the Congo 
Free-State, France, Germany, Portugal, and Spain. 

The protocol provided : 

"L'importation de toute espece d'armes a feu, de munitions, et 
de poudre destinees a des indigenes ainsi que la vente et la 
dglivrance de toute espece d'armes & feu, de munitions et de 
poudre a des indigenes seront suspendues pour la duree de quatre 
ans a partir du 15 fevrier, 1909, dans la zone designee au § 2. 
ces dispositions n'etant pas applicables aux armes, munitions et 
poudres importees en transit et destinies a des regions en dehors 
de ladite zone. II est entendu que les autorites locales pourront 
dans des cas tout a fait exceptionnels delivrer aux indigenes des 
armes k feu, des munitions et de la poudre." (British and For- 
eign States Papers, vol. 101, p. 176.) 

Convention of St. Germain-en-Laye, 1919. — In the 
preamble of the Convention of St. Germain-en-Laye, 
September 10, 1919, it was stated that the provision of 
the Brussels Act of July 2, 1890, and of other conven- 
tions "no longer meet present conditions" in regard to 
trade in arms and ammunition and that special pro- 
visions should be agreed upon for certain areas, par- 
ticularly in Africa and Asia. 

This Convention with the Revision of the Act of Ber- 
lin, signed at the same time, aimed to prohibit the export 
of arms, etc., and to supervise the import of arms, etc.. 
in certain areas of Africa and Asia. The plenipoten- 
tiaries of the United States signed the Convention of 
St. Germain-en-Laye, but it was not ratified by the 
United States till 1934 (49 Stat. 3027), and was not 
ratified by some of the larger European states. 

Article I of this Convention was as follows : 



\\2 NEUTRALITY, 1914-1936 

''The High Contracting Parties undertake to prohibit the ex- 
port of the following arms of war: artillery of all kinds, appara- 
tus for the discharge of all kinds of projectiles explosive or gas- 
diffusing, flame-throwers, bombs, grenades, machine-guns and 
rifled small-bore breech-loading weapons of all kinds, as well as 
the exportation of the ammunition for use with such arms. The 
prohibition of exportation shall apply to all such arms and am- 
munition, whether complete or in parts. 

'•Nevertheless, notwithstanding this prohibition, the High Con- 
tracting Parties reserve the right to grant, in respect of arms 
whose use is not prohibited by International Law, export licenses 
to meet the requirements of their Governments or those of the 
Government of any of the High Contracting Parties, but for no 
other purpose. 

"In the case of firearms and ammunition adapted both to war- 
like and also to other purposes, the High Contracting Parties 
reserve to themselves the right to determine from the size, 
destination, and other circumstances of each shipment for what 
uses it is intended and to decide in each case whether the pro- 
visions of this Article are applicable to it." 

Restriction on importation of arms and munitions, 
1919. — A collective agreement in regard to the importa- 
tion of arms and munitions in case of the domestic dis- 
turbances in China in 1919 was found possible. This 
was embodied in a note of May 5, 1919, from the Dean 
of the Diplomatic Corps to the Chinese Acting Minister 
of Foreign Affairs. The specific part of the agreement 
f ollows : 

"The Governments of Great Britain, Spain, Portugal, the 
United States. Russia. Brazil, France and Japan have agreed 
effectively to restrain their subjects and citizens from exporting 
to or importing into China arms and munitions of war and ma- 
terial destined exclusively for their manufacture until the estab- 
lishment of a government whose authority is recognized through- 
out the whole country and also to prohibit during the above 
period the delivery of arms and munitions for which contracts 
have already been made but not executed. 

"The Representatives of the Netherlands. Denmark. Belgium 
and Italy are also in full accord with the above policy, but 
await the instructions of their respective Government before 
announcing the adhesion of the latter. 

"The Foreign Representatives desire to express the earnest 
hope that the Chinese Government in keeping with this policy 
will on their part agree to suspend the issue of permits to im- 
port military arms, ammunition and munitions of war and will 
direct the Customs that the introduction of such articles is 
absolutely prohibited. 

I avail myself, etc. 

J. N. Jordan. 

(Foreign Relations, U. S. 1919, vol. I, p. 670.) 



GENEVA CONVENTION, 1925 H3 

Later, September 10, 1919, the United States inter- 
preted the agreement "as including raw material for 
manufacture of arms and ammunition and has only 
recently held it to include the machinery used in their 
manufacture." (Ibid., p. 672.) 

Some Governments were not in accord with this inter- 
pretation. 

Mandates and traffic in arms. — The mandate system 
introduced by the Treaty of Versailles, 1919, generally 
provided for the control of the traffic in arms. The 
document entrusting the mandated area to a mandatory 
usually contained a specific provision in regard to traffic 
in arms and referred to the Convention of September 
10, 1919: 

"The mandatory shall also see that the traffic in arms and 
ammunition is controlled in accordance with principles analog- 
ous to those laid down in the convention relating to the control 
of the arms traffic signed on September 10, 1919, or in any con- 
vention amending the same." (Naval War College, International 
Law Situations. 1929, p. 50.) 

Convention of Geneva. June 17, 1926. — The Conven- 
tion on Supervision of International Trade in Arms and 
Ammunition and in Implements of War, Geneva, June 
17, 1925, was drawn up with view to introducing "a gen- 
eral and effective system of supervision and publicity" 
and special supervision for certain areas. In many re- 
spects it was more detailed than the Convention of St. 
Germain-en-Laye of 1919. It enumerated five categories 
of arms, ammunition, and implements and gave specifi- 
cations under each category. 

The categories were as follows : 

"Category I. Arms, ammunition and implements of war exclu- 
sively designed and intended for land, sea or aerial warfare. 

"Category II. Arms and ammunition capable of use both for 
military and other purposes. 

"Category III. Vessels of war and their armament. 

"Category IV. 1. Aircraft, assembled or dismantled. 2. Air- 
craft engines. 

"Category V. 1. Gunpowder and explosives, except common 
black gunpowder. 2. Arms and ammunition other than those 



;Q4 NEUTRALITY, 1914-1936 

covered by Categories I and II, such as pistols and revolvers of 
all models, rifled weapons with a 'break-down' action, other rifled 
fire-arms of a calibre of less than 6 mm. designed for firing from 
the shoulder, smooth-bore shot-guns, guns with more than one 
barrel of which at least one barrel is smooth-bore, fire-arms firing 
rimfire ammunition, muzzle-loading fire-arms." (League of Na- 
tions Document, A-16.1925.IX.) 

The provisions for publicity were detailed and special 
zones were placed under a defined regime. A large num- 
ber of states signed this convention and Italy and 
Ethiopia were included. Ratification has not been gen- 
eral, and in case of some of the larger states has been 
conditional. 

The United States and Chaco Arms Embargo, 193 '4. — 
A joint resolution of Congress, May 28, 1934, placed re- 
strictions upon the sale of arms and munitions of war in 
the United States. The resolution was as follows: 

"Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That if the 
President finds the prohibition of sale of arms and munitions of 
war in the United States to those countries now engaged in armed 
conflict in the Chaco may contribute to the re-establishment of 
peace between those countries, and if after consultation with the 
governments of other American republics and with their coopera- 
tion, as well as that of such other governments as he may deem 
necessary, he makes proclamation to that effect, it shall be unlaw- 
ful to sell, except under such limitations and exceptions as the 
President prescribes, any arms or munitions of war in any place 
in the United States to the countries now engaged in that armed 
conflict, or to any person, company or association acting in the 
interest of either country, until otherwise ordered by the President 
or by Congress. 

"Sec. 2. Whoever sells any arms or munitions of war in viola- 
tion of Section 1 shall, on conviction, be punished by a fine not 
exceeding $10,000 or by imprisonment not exceeding two years, 
or both." (48 Stat 811.) 

The President accordingly issued a proclamation : 

"Now, therefore, I, Franklin D. Roosevelt, President of the 
United States of America, acting under and by virtue of the 
authority conferred on me by the said joint resolution of Con- 
gress, do hereby declare and proclaim that I have found that 
the prohibition of the sale of arms and munitions of war in 
the United States to those countries now engaged in armed 
conflict in the Chaco may contribute to the re-establishment of 
peace between those countries, and that I have consulted with 
the governments of other American republics and have been 



CHACO ARMS EMBARGO, 1934 1 15 

assured of the cooperation of such governments as I have 
deemed necessary as contemplated by the said joint resolution ; 
and I do hereby admonish all citizens of the United States and 
every person to abstain from every violation of the provisions 
of the joint resolution above set forth, hereby made applicable 
to Bolivia and Paraguay, and I do hereby warn them that all 
violations of such provisions will be rigorously prosecuted. 

"And I do hereby enjoin upon all officers of the United States 
charged with the execution of the laws thereof, the utmost 
diligence in preventing violations of the said joint resolution 
and this my proclamation issued thereunder, and in bringing 
to trial and punishment any offenders against the same. 

"And I do hereby delegate to the Secretary of State the 
power of prescribing exceptions and limitations to the applica- 
tion of the said joint resolution of May 28, 1934, as made 
effective by this my proclamation issued thereunder." (48 Stat. 
1744.) 

This proclamation was revoked as to the sale of arms 
and munitions of war to Bolivia and Paraguay on 
November 14, 1935 — effective from November 29, 1935. 

In rendering the opinion in the case of the United 
States v. Curtis -Wright Export Corporation et al., 
December 21, 1936, the Supreme Court said of the con- 
stitutionality of the joint resolution that, 

"It is important to bear in mind that we are here dealing 
not alone with an authority vested in the President by an 
exertion of legislative power, but with such an authority plus 
the very delicate, plenary and exclusive power of the President 
as the sole organ of the Federal Government in the field of 
international relations — a power which does not require as a 
basis for its exercise an act of Congress, but which, of course, 
like every other governmental power, must be exercised in 
subordination to the applicable provisions of the Constitution. 

"It is quite apparent that if, in the maintenance of our 
international relations, embarrassment — perhaps serious embar- 
rassments — is to be avoided and success for our aims achieved, 
Congressional legislation which is to be made effective through 
negotiation and inquiry within the international field must often 
accord to the President a degree of discretion and freedom from 
statutory restriction which would not be admissible were domes- 
tic affairs alone involved. 

"Moreover, he, not Congress, has the better opportunity of 
knowing the conditions which prevail in foreign countries, and 
especially is this true in time of war. He has his confidential 
sources of information. He has his agents in the form of diplo- 
matic, consular and other officials." 

"At their own risk" — In general to a question at the 

press conference on October 10, 1935, Secretary of State 



215 NEUTRALITY, 1914-1936 

Hull said of American interests trading with belliger- 
ents " at their own risk" : 

"As I said to you gentlemen before, the language of the 
President's statement has thoroughly well-defined meaning, and 
every person should be able to grasp its meaning and its im- 
plications. Technically, of course, there is no legal prohibi- 
tion — apart from the proclamation governing the export of 
arms — against our people entering into transactions with the 
belligerents or either of them. The warning given by the Presi- 
dent in his proclamation concerning travel on belligerent ships 
and his general warning that during the war any of our people 
who voluntarily engage in transactions of any character with 
either of the belligerents do so at their own risk were based 
upon the policy and purpose of keeping this country out of 
war — keeping it from being drawn into war. It certainly was 
not intended to encourage transactions with the belligerents. 

"Our people might well realize that the universal state of 
business uncertainty and suspense on account of the war is 
seriously handicapping business between all countries, and that 
the sooner the war is terminated the sooner the restoration and 
stabilization of business in all parts of the world, which is 
infinitely more important than trade with the belligerents, will 
be brought about. 

"This speedy restoration of more full and stable trade conditions 
and relationships among the nations is by far the most profitable 
objective for our people to visualize, in contrast with such risky 
and temporary trade as they might maintain with belligerent 
nations. 

"I repeat that our objective is to keep this country out of war." 
< Department of State, Press Releases. Vol. XIII, p. 303. ) 

The Secretary of State made further explanations on 
November 15. 1935: 

"On October 1<> I explained that the President's statement was 
based primarily upon the policy and purpose 61 keeping this 
country out of war. and that 'it certainly was not intended to 
encourage transactions with the belligerents.' I further explained 
that 'our people might well realize that the universal state of 
business uncertainty and suspense on account of the war is seri- 
ously handicapping business between all countries, and that the 
sooner the war is terminated the sooner the restoration and 
stabilization of business in all parts of the world, which is 
infinitely more important than trade with the belligerents, will 
be brought about." The President, in a statement on October 
30, further emphasized the spirit of this policy." 

"The American people are entitled to know that there are 
certain commodities such as oil. copper, trucks, tractors, scrap 
iron, and scrap steel which are essential war materials, although 
not actually 'arms, ammunition, or implements of war', and that 
according to recent Government trade reports a considerably 
increased amount of these is being exported for war purposes. 



PROCLAMATION OF UNITED STATES, 1936 \yj 

This class of trade is directly contrary to the policy of this 
Government as announced in official statements of the President 
and Secretary of State, as it is also contrary to the general spirit 
of the recent neutrality act. 

"The administration is closely observing the trend and volume 
of exports to those countries, and within a few days the Depart- 
ment of Commerce expects to have complete detailed lists of all 
commodities exported to the belligerents which will enable exact 
comparison with lists for the same period last year." (Ibid., 
p. 382.) 

Proclamation of the United States, 29 February 1936. — 

The attitude of the United States in regard to the export 

and transportation of arms, ammunition, and implements 

of war is stated in the proclamation of 29 February 1936 : 

By the President of the United States of America 
a proclamation 

Whereas section 1 of a joint resolution of Congress, entitled 
"Joint resolution providing for the prohibition of the export of 
arms, ammunition, and implements of war to belligerent countries ; 
the prohibition of the transportation of arms, ammunition, and 
implements of war by vessels of the United States for the use of 
belligerent states ; for the registration and licensing of persons 
engaged in the business of manufacturing, exporting, or importing 
arms, ammunition, or implements of war; and restricting travel 
by American citizens on belligerent ships during war", approved 
August 31, 1935, provides as follows : 

"Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That upon the 
outbreak or during the progress of war between, or among, two 
or more foreign states, the President shall proclaim such fact, 
and it shall thereafter be unlawful to export arms, ammunition, 
or implements of war from any place in the United States, or 
possessions of the United States, to any port of such belligerent 
states, or to any neutral port for transshipment to. or for the 
use of, a belligerent country. 

"The President, by proclamation, shall definitely enumerate 
the arms, ammunition, or implements of war, the export of which 
is prohibited by this Act. 

"The President may, from time to time, by proclamation, extend 
such embargo upon the export of arms, ammunition, or imple- 
ments of war to other states as and when they may become 
involved in such war. 

"Whoever, in violation of any of the provisions of this section, 
shall export, or attempt to export, or cause to be exported, arms, 
ammunition, or implements of war from the United States, or any 
of its possessions, shall be fined not more than $10,000 or impris- 
oned not more than five years, or both, and the property, vessel, 
or vehicle containing the same shall be subject to the provisions 



U£ NEUTRALITY, 1914-1936 

of sections 1 to 8, inclusive, title 6, chapter 30, of the Act approved 
June 15, 1917 (40 Stat. 223-225; U. S. C, title 22, sees. 238-245). 

"In the case of the forfeiture of any arms, ammunition, or 
implements of war by reason of a violation of this Act, no public 
or private sale shall be required ; but such arms, ammunition, or 
implements of war shall be delivered to the Secretary of War for 
such use or disposal thereof as shall be approved by the President 
of the United States. 

"When in the judgment of the President the conditions which 
have caused him to issue his proclamation have ceased to exist he 
shall revoke the same and the provisions hereof shall thereupon 
cease to apply. 

"Except with respect to prosecutions committed or forfeitures 
incurred prior to March 1, 1936, this section and all proclamations 
issued thereunder shall not be effective after February 29, 1936." 

And whereas section 1 of a joint resolution of Congress extend- 
ing and amending the joint resolution approved August 31, 1935, 
which was approved February 29. 1936, provides as follows : 

"Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That section 1 
of the joint resolution (Public Resolution Numbered 67, Seventy- 
fourth Congress) approved August 31, 1935, be, and the same 
hereby is, amended by striking out in the first section, on the 
second line, after the word 'assembled' the following words : 'That 
upon the outbreak or during the progress of war between', and 
inserting therefor the words : 'Whenever the President shall find 
that there exists a state of war between' ; and by striking out 
the word 'may' after the word 'President' and before the word 
'from' in the twelfth line, and inserting in lieu thereof the word 
'shall' ; and by substituting for the last paragraph of said section 
the following paragraph : 'except with respect to offenses com- 
mitted, or forfeitures incurred prior to May 1, 1937, this section 
and all proclamations issued thereunder shall not be effective 
after May 1, 1937.' " 

And whereas my proclamation of October 5, 1935, issued pur- 
suant to section 1 of the joint resolution approved August 31, 
1935, declared that a state of war unhappily existed between 
Ethiopia and the Kingdom of Italy. 

Now, therefore, I, Franklin D. Roosevelt, President of the 
United States of America, acting under and by virtue of the 
authority conferred on me by the said joint resolution as amended 
by the joint resolution of Congress approved February 29, 1936, 
do hereby proclaim that a state of war unhappily continues to 
exist between Ethiopia and the Kingdom of Italy; and I do hereby 
admonish all citizens of the United States or any of its possessions 
and all persons residing or being within the territory or jurisdic- 
tion of the United States or its possessions to abstain from every 
violation of the provisions of the joint resolution above set forth, 
hereby made effective and applicable to the export of arms, ammu- 
nition, or implements of war from any place in the United States 
or its possessions to Ethiopia or to the Kingdom of Italy, or to 
any Italian possession, or to any neutral port for transshipment 
to, or for the use of, Ethiopia or the Kingdom of Italy. 



PROCLAMATION OF UNITED STATES, 1936 H9 

And I do hereby declare and proclaim that the articles listed 
below shall be considered arms, ammunition, and implements of 
war for the purposes of section 1 of the said joint resolution of 
Congress : 

Category I 

(1) Rifles and carbines using ammunition in excess of caliber 
.22, and barrels for those weapons; 

(2) Machine guns, automatic or autoloading rifles, and ma- 
chine pistols using ammunition in excess of caliber .22, and 
barrels for those weapons ; 

(3) Guns, howitzers, and mortars of all calibers, their mount- 
ings and barrels ; 

(4) Ammunition in excess of caliber .22 for the arms enu- 
merated under (1) and (2) above, and cartridge cases or bullets 
for such ammunition; filled and unfilled projectiles or forgings 
for such projectiles for the arms enumerated under (3) above; 
propellants with a web thickness of .015 inch or greater for the 
projectiles of the arms enumerated under (3) above; 

(5) Grenades, bombs, torpedoes and mines, filled or unfilled, 
and apparatus for their use or discharge; 

(6) Tanks, military armored vehicles, and armored trains. 

Category II 

Vessels of war of all kinds, including aircraft carriers and 
submarines. 

Category HI 

(1) Aircraft, assembled or dismantled, both heavier and lighter 
than air, which are designed, adapted, and intended for aerial 
combat by the use of machine guns or of artillery or for the 
carrying and dropping of bombs, or which are equipped with, 
or which by reason of design or construction are prepared for, 
any of the appliances referred to in paragraph (2) below; 

(2) Aerial gun mounts and frames, bomb racks, torpedo car- 
riers, and bomb or torpedo release mechanisms. 

Category IV 

(1) Revolvers and automatic pistols using ammunition in 
excess of caliber .22; 

(2) Ammunition in excess of caliber .22 for the arms enu- 
merated under (1) above, and cartridge cases or bullets for such 
ammunition. 

Category V 

(1) Aircraft, assembled or dismantled, both heavier and 
lighter than air, other than those included in Category III ; 

(2) Propellers or air screws, fuselages, hulls, wings, tail units, 
and under-carriage units; 

(3) Aircraft engines, assembled or unassembled. 

Category VI 

( 1 ) Livens projectors and flame throwers ; 

(2) Mustard gas (dichlorethylsulphide), lewisite (chloro- 
vinyldichlorarsine and dichlorodivinylchlorarsine), ethyldichlor- 



120 NEUTRALITY, 1914-1936 

arsine, methyldichorarsine, ethyliodoacetate, brombenzylcyanide, 
diphenolchlorarsine. and dyphenoleyanoarsine. 

And I do hereby enjoin upon all officers of the United States, 
charged with the execution of the laws thereof, the utmost 
diligence in preventing violations of the said joint resolution, and 
this my proclamation issued thereunder, and in bringing to trial 
and punishment any offenders against the same. 

And I do hereby delegate to the Secretary of State the power 
of prescribing regulations for the enforcement of section 1 of 
the said joint resolution of August 31, 1935. as amended by sec- 
tion 1 of the joint resolution of Congress approved February 
29, 1936, and as made effective by this my proclamation issued 
thereunder. 

And I do hereby revoke my proclamation of October 5, 1935. 
concerning the export of arms, ammunition, and implements of 
war to Ethiopia and Italy, which was issued pursuant to the 
terms of section 1 of the joint resolution of Congress approved 
August 31, 1935, provided, however, that this action shall not 
have the effect of releasing or extinguishing any penalty, forfei- 
ture or liability incurred under the aforesaid proclamation of 
October 5, 1935 ; and that the said proclamation shall be treated 
as remaining in force for the purpose of sustaining any proper 
action or prosecution for the enforcement of such penalty, forfei- 
ture or liability. 

IN WITNESS WHEREOF, I have hereunto set my hand and 
caused the Seal of the United States of America to be affixed. 

DONE at the city of Washington this 29 day of February, 
in the year of our Lord nineteen hundred and thirty- 
six, and of the Independence of the United States of 
America the one hundred and sixtieth. 

| SEAL] 

FRANKLIN D ROOSEVELT 
By the President : 
Cordell Hull 

Secretory of state. 

Department of Staters position, 193d. — On November 
10, 1935, an address of the Secretary of State Hull set 
forth his point of view upon the embargo on arms, 
saying: 

"Any discussion of the avoidance of war, or of the observance 
of neutrality in the event of war, would be wholly incomplete if 
too much stress were laid on the part played in the one or the 
other by the shipment, or the embargoing of the shipment, of 
arms, ammunition, and implements of war. The shipment of 
arms is not the only way and, in fact, is not the principal 
way by which our commerce with foreign nations may lead to 
serious international difficulties. To assume that by placing an 
embargo on arms we are making ourselves secure from dangers 
of conflict with belligerent countries is to close our eyes to 



TRAVEL IN WAR 121 

manifold dangers in other directions. The imposition of an 
arms embargo is not a complete panacea, and we cannot assume 
that when provision has been made to stop the shipment of 
arms, which as absolute contraband have always been regarded 
as subject to seizure by a belligerent, we may complacently 
sit back with the feeling that we are secure from all danger. 
Attempts by a belligerent to exercise jurisdiction on the high 
seas over trade with its enemy, or with other neutral countries 
on the theory that the latter are supplying the enemy, may 
give rise to difficulties no less serious than those resulting from 
the exportation of arms and implements of war. So also trans- 
actions of any kind between American nationals and a belligerent 
may conceivably lead to difficulties of one kind or another be- 
tween the United States and the belligerent. It was with these 
thoughts in mind that the President issued his timely warning 
that citizens of the United States who engage in transactions 
of any character with either belligerent would do so at their 
own risk. * * * 

"Our own interest and our duty as a great power forbid that 
we shall sit idly by and watch the development of hostilities 
with a feeling of self-sufficiency and complacency when by the 
use of our influence, short of becoming involved in the dispute 
itself, we might prevent or lessen the scourge of war. In short, 
our policy as a member of the community of nations should be 
two-fold : first, to avoid being brought into a war, and second, 
to promote as far as possible the interests of international peace 
and good will. A virile policy tempered with prudent caution 
is necessary if we are to retain the respect of other nations and 
at the same time hold our position of influence for peace and 
international stability in the family of nations." (Department 
of State, Press Releases, Vol. XIII, p. 367.) 

Travel in time of ioar. — Experience during the World 
War, 1914-1918, furnished examples of problems aris- 
ing in consequence of the presence of neutral nationals 
upon belligerent vessels : 

The Joint ^Resolution of August 31, 1935, provided : 

Sec. 6. Whenever, during any war in which the United States 
is neutral, the President shall find that the maintenance of 
peace between the United States and foreign nations, or the 
protection of the lives of citizens of the United States, or the 
protection of the commercial interests of the United States and 
its citizens, or the security of the United States requires that 
the American citizens should refrain from traveling as pas- 
sengers on the vessels of any belligerent nation, he shall so 
proclaim, and thereafter no citizen of the United States shall 
travel on any vessel of any belligerent nation except at his own 
risk, unless in accordance with such rules and regulations as 
the President shall prescribe : Provided, however, That the pro- 
visions of this section shall not apply to a citizen traveling on 
the vessel of a belligerent whose voyage was begun in advance 

1820—37 9 



222 NEUTRALITY, 1914-1936 

of the date of the President's proclamation, and who had no 
opportunity to discontinue his voyage after that date: And 
provided further, That they shall not apply under ninety days 
after the date of the President's proclamation to a citizen re- 
turning from a foreign country to the United States or to any 
of its possessions. When, in the President's judgment, the con- 
ditions which have caused him to issue his proclamation have 
ceased to exist, he shall revoke his proclamation and the provi- 
sions of this section shall thereupon cease to apply. (49 Stat. 
(Pt. I), 1084.) 

Reply of the Department of State on loans. — In the 
letter of January 8, 1915, from Senator Stone, the Chair- 
man of the Senate Committee on Foreign Relations to 
the Secretary of State reference was made to a complaint 
regarding : 

''(13) Change of policy in regard to loans to belligerents. 
"(a) General loans ; 
"(b) Credit loans." 

In discussing this complaint, the Secretary of State said : 

"(13) Change of policy in regard to loans to oeligerents. 

"War loans in this country were disapproved because incon- 
sistent with the spirit of neutrality. There is a clearly defined 
difference between a war loan and the purchase of arms and 
ammunition. The policy of disapproving of war loans affects all 
governments alike, so that the disapproval is not an unneutral act. 
The case is entirely different in the matter of arms and ammuni- 
tion, because prohibition of export not only might not, but in 
this case would not, operate equally upon the nations at war. 
Then, too, the reason given for the disapproval of war loans is 
supported by other considerations which are absent in the case 
presented by the sale of arms and ammunition. The taking of 
money out of the United States during such a war as this might 
seriously embarrass the Government in case it needed to borrow 
money and it might also seriously impair this Nation's ability 
to assist the neutral nations which, though not participants in 
the war, are compelled to bear a heavy burden on account of the 
war. and. again, a war loan, if offered for popular subscription 
in the United States, would be taken up chiefly by those who 
are in sympathy with the belligerent seeking the loan. The 
result would be that great numbers of American people might 
become more earnest partisans, having material interest in the 
success of the belligerent whose bonds they hold. These pur- 
chases would not be confined to a few, but would spread generally 
throughout the country, so that the people would be divided into 
groups of partisans, which would result in intense bitterness 
and might cause an undesirable, if not a serious, situation. On 
the other hand, contracts for and sales of contraband are mere 
matters of trade. The manufacturer, unless peculiarly senti- 



POLICY ON LOANS 123 

mental, would sell to one belligerent as readily as he would to 
another. No general spirit of partisanship is aroused — no sym- 
pathies excited. The whole transaction is merely a matter of 
business. 

"This Government has not been advised that any general loans 
have been made by foreign governments in this country since 
the President expressed the wish that loans of this character 
should not be made." (Foreign Relations, U. S. 1914 Supplement, 
p. xii.) 

The Secretary of State had early in the World War 
sent the following telegram to J. P. Morgan and 
Company. 

"Department of State 
Washington, August 15, 1914. 
"Inquiry having been made as to the attitude of this Govern- 
ment in case American bankers are asked to make loans to for- 
eign governments during the war in Europe, the following 
announcement is made : 

" "There is no reason why loans should not be made to the 
governments of neutral nations, but in the judgment of this 
Government, loans by American bankers to any foreign nation 
which is at war are inconsistent with the true spirit of neutrality.' 

W. J. Bryan." 
(Ibid., p. 580.) 

The Government of the United States was obliged to 
take facts into consideration. "The true spirit of neu- 
trality" which Mr. Bryan had indicated on August 15, 
1914, as inconsistent with negotiating of loans by Ameri- 
can bankers to belligerents was not supported by any 
law. Law usually rests upon long experience. As wa9 
evident in the press notice of March 31, 1915, the Gov- 
ernment had not found itself justified in "interposing 
objection" and gradually nearly all restraints were re- 
moved. Some may say that the economic motive was 
more potent than the moral or some other motive, but in 
matters of this kind, it is essential to recall that the state 
is a political organization and its action must ultimately 
rest upon the forces conceived to be working for the 
public well-being and these are many and varied. 

Statement on loans in 1916. — Queries were raised in 
regard to loans to belligerents in 1916 also. On this 



224 NEUTRALITY, 1914-1936 

subject, Mr. Polk, then Counselor for the Department of 
State, said : 

'War loans in this country were disapproved because deemed 
inconsistent with the spirit of neutrality. At the very beginning 
of the present war this Government announced that in its judg- 
ment loans by American bankers to any foreign nation which is 
at war is inconsistent with the true spirit of neutrality and 
refused in any way to facilitate such loans. 

"While expressing its position with regard to these loans, there 
was no way in which the Government could prevent private 
loans being made to the belligerents since such loans were in 
violation of no law of the United States and there was no way 
in which those making the loans could be prosecuted. The Gov- 
ernment has in no way facilitated or encouraged any loans that 
may have been made. 

••The State Department has from time to time received infor- 
mation, directly or indirectly, to the effect that belligerent nations 
had arranged with banks in the United States for credits for 
various sums. While loans to belligerents have been disapproved, 
this Government has not felt that it was justified in interposing 
objection to the credit arrangements which have been brought 
to its attention. It has neither approved these credits nor dis- 
approved. It has simply taken no action in the premises and 
expressed on opinion." (Foreign Relations, 1916, Supplement, 
P. 8.) 

Limitation of loans proposal, 1917. — The problem of 

loans in various forms became more and more serious as 

the war progressed. The attempts to close the avenues 

of credit were only in part successful. In a letter of 

August 18, 1917, to the Secretary of State the British 

Embassy outlined in detail a plan to which he hoped the 

United States would adhere. In this letter he says : 

"It is a matter of the gravest concern to His Majesty's Gov- 
ernment, at the present time, that supplies of monetary credit — 
one of the most vital forms of all aids — continue to reach the 
enemy through neutral countries, as it cannot be doubted that 
aid in this form must prolong the war, and so be the direct cause 
of further loss of life and unnecessary suffering. 

"As you are well aware, the enemy has only four possible 
methods by which he can pay for the supplies of goods and other 
aids which he obtains from neutral countries. These are (a) to 
export goods or services ; (b) to export gold ; (c) to obtain credits 
from neutrals; (d) to realise his existing investments in neutral 
countries. 

"It is obvious that if it is possible to prevent the enemy obtain- 
ing credit from neutrals or realising bis investments through 
them, he will be driven, either to export more goods (which will 
be difficult), or to export gold (which it is unlikely that he will 



BRITISH LOANS PROPOSAL, 1917 125 

<lare to do in sufficient quantity) or finally to decrease or cease 
his purchases abroad. His Majesty's Government therefore con- 
sider that the moment has come for bringing pressure to bear 
upon neutrals in order to deter them from rendering financial 
assistance to the enemy, and they suggest the use for this purpose 
of the very powerful weapon which the Allies possess in the con- 
trol of the paramount financial markets of New York, London 
and Paris, as well as Milan and Petrograd. 

"His Majesty's Government propose that a notice should be 
issued in the neutral European press in the following terms : 

"The Governments of France, Great Britain, Italy, Russia and 
United States have decided that it may become inexpedient for 
banking houses in their respective territories to continue to have 

dealings with any banking house in which engages 

directly or indirectly in: 

"1. Granting of any loan, credit or overdraft or increase of 
any existing loan, credit or overdraft to an enemy of any of 
those five countries ; 

"2. The subscription to or purchase of any loan issued after 
this date by an enemy of any of those five countries ; 
. "3. The purchase from or sale on behalf of an enemy of any 
of those five countries of any bond or certificate issued by the 
Government, or by any corporation or company in any of those 
five countries ; or of any dividend warrant or coupon payable in 
any of those five countries, or of any note, bill of exchange or 
draft payable in any of those five countries ; 

"4. The collection, discounting or negotiation on behalf of an 
enemy of any of those five countries of any bond, note, bill of 
exchange, cheque, draft, dividend warrant or coupon payable in 
any of those five countries ; 

"5. Transmission by any means whatever of any document, 
letter, message or advice of any kind relating to any of above 
transactions." (Foreign Relations, U. S., 1917 Supplement 2, 
p. 924.) 

On September 4, 1917, the Attorney General in a com- 
munication to the Secretary of State in regard to the 
British plan said : 

"I understand the British proposition to be substantially as 
follows : 

" 'That the United States should direct its citizens and banking 
houses in the United States to discontinue all intercourse, direct 
or indirect, with any banking house in another country which 
has any dealings with the class of persons defined as "enemy" 
"by the United States ; in other words, if a Brazilian bank A in 
Brazil should deal with B a German doing business within 
Brazil and also within Germany (and therefore an "enemy"), 
the United States should direct a United States citizen C to 
have no dealings with the Brazilian bank A.' 

"The mere statement of the proposition, in my opinion, demon- 
strates the inadvisability, of any assent by the United States to 
such a course of action. It would amount clearly to the most 



226 NEUTRALITY, 1914-1936 

extreme form of black list of citizens of neutral nations — re- 
stricting American dealings with such neutral citizens simply 
because the latter might also be entering into transactions with 
German enemies perfectly legitimate under the law of the neu- 
tral nation. Of course, if the trade was to be carried on by a 
United States citizen with a neutral citizen as an indirect means 
of trading with the German enemy, it would be unlawful, 
under the law of the United States as at present constituted, and 
would be a criminal transaction under the terms of the pending 
Trading with the Enemy bill. 

"I can not believe that it would be wise or just for this 
Government to assent to the proposition laid before you by the 
British Embassy." (Ibid., p. 941.) 

Bonds, loans , etc. during the period of war. — The 
practice of neutral states in regard to limiting financial 
transactions with belligerents has varied greatly. Some- 
times a single state has not maintained the same attitude 
throughout a war. The Joint Resolution of Congress 
of the United States of February 29, 1936, in Section 
la, provided that: 

"Whenever the President shall have issued his proclamation 
as provided for in section 1 of this Act, it shall thereafter dur- 
ing the period of the war be unlawful for any person within the 
United States to purchase, sell, or exchange bonds, securities, or 
other obligations of the government of any belligerent country, 
or of any political subdivision thereof, or of any person acting 
for or on behalf of such government, issued after the date of 
such proclamation, or to make any loan or extend any credit 
to any such government or person : PROVIDED, That if the 
President shall find that such action will serve to protect the 
commercial or other interests of the United States or its 
nationals, he may, in his discretion, and to such extent and under 
such regulation as he may prescribe, except from the operation 
cf this section ordinary commercial credits and short time obli- 
gations in aid of legal transactions and of a character custom- 
arily used in normal peace-time commercial transactions. 

"The provisions of this section shall not apply to a renewal 
or adjustment of such indebtedness as may exist on the date 
of the President's proclamation." (49 Stat. 1153.) 

Restrictions on travel of nationals. — As a state is in 
some degree responsible for the conduct and for the 
safety of its nationals, the state must have a reasonable 
control of the movements of its citizens. The require- 
ment of some sort of registration before departure from 
the state's jurisdiction, travel permits or passport restric- 
tions, may furnish sufficient control. 



RESTRICTIONS OX TRAVEL 127 

The restriction upon the issue of passports may extend 
to refusal to grant a passport or to grant only under 
conditions. During the World AVar, restrictions upon 
the issue of American passports became more and more 
detailed and the Secretary of State might refuse a pass- 
port "in his discretion." 

In general a state may regulate the departure of its 
nationals from its jurisdiction, but is not under obliga- 
tions to prohibit citizens from traveling on the high seas 
or in foreign states which respect the request of the 
j)assport. 

On April IT, 1915. in a notice issued by the Depart- 
ment of State to American citizens who contemplated 
visiting belligerent countries it was said: 

"It is believed that governments of countries which are in a 
state of war do not welcome aliens who are traveling merely for 
curiosity or pleasure. Under the passport regulations prescribed 
by the President January 12, 1915, passports issued by this Gov- 
ernment contain statements of the names of countries which the 
holders expect to visit and the objects of their visits thereto. The 
Department does not deem it appropriate or advisable to issue 
passports to persons who contemplate visiting belligerent countries 
merely for 'pleasure,' 'recreation,' 'touring,' 'sight-seeing,' etc." 
(9 American Journal of International Law. Special Supplement, 
July, 1915, p. 391.) 

In a letter of December 23, 1915, in regard to the Kules 
of December 17, 1915, governing the granting and issuing 
of passports in the United States, Mr. Lansing, Secretary 
of State, said : 

"The object of the President's order is not to interfere with 
travel from this country, but to prevent the use of passports by 
persons who may obtain them by improper representations or 
for fraudulent purposes." (Foreign Relations, U. S. 1915 Supple- 
ment, p. 914.) 

Mr. Bryan, the Secretary of State of the United States, 
in the first year of the World War, after the sinking of 
the Falaba and the Lusitania, in the note of May 13, 1915, 
after crediting Germany with the purpose to observe 
law, said : 



128 NEUTRALITY, 1914-1936 

"The Government of the United States has been apprised that 
the Imperial German Government considered themselves to be 
obliged by the extraordinary circumstances of the present war 
and the measures adopted by their adversaries in seeking to cut 
Germany off from all commerce, to adopt methods of retaliation 
which go much beyond the ordinary methods of warfare at sea, 
in the proclamation of a war zone from which they have warned 
neutral ships to keep away. This Government has already taken 
occasion to inform the Imperial German Government that it can 
not admit the adoption of such measures or such a warning of 
danger to operate as in any degree an abbreviation of the rights 
of American ship-masters or of American citizens bound on lawful 
errands as passengers on merchant ships of belligerent nation- 
ality ; and that it must hold the Imperial German Government 
to a strict accountability for any infringement of those rights, 
intentional or incidental. It does not understand the Imperial 
German Government to question those rights. It assumes, on the 
contrary, that the non-combatants, whether they be of neutral 
citizenship or citizens of one of the nations at war, can not law- 
fully or rightfully be put in jeopardy by the capture or destruction 
of an unarmed merchantman, and recognize also, as all other 
nations do, the obligation to take the usual precaution of visit and 
search to ascertain whether a suspected merchantman is in fact 
of belligerent nationality or is in fact carrying contraband of 
war under a neutral flag." * * * 

"American citizens act within their indisputable rights in 
taking their ships and in traveling wherever their legitimate 
business calls them upon the high seas, and exercise those rights 
in what should be the well- justified confidence that their lives 
will not be endangered by acts done in clear violation of uni- 
versally acknowledged international obligations, and certainly in 
the confidence that their own Government will sustain them in 
the exercise of their rights. 

"There was recently published in the newspapers of the 
United States, I regret to inform the Imperial German Gov- 
ernment, a formal warning, purporting to come from the Im- 
perial German Embassy at Washington, addressed to the people 
of the United States, and stating, in effect, that any citizen 
of the United States who exercise his right of free travel upon 
the seas would do so at his peril if his journey should take him 
within the zone of waters within which the Imperial German 
Navy was using submarines against the commerce of Great 
Britain and France, notwithstanding the respectful but very 
earnest protest of his Government, the Government of the United 
States. I do not refer to this for the purpose of calling the 
attention of the Imperial German Government at this time to 
the surprising irregularity of a communication from the Imperial 
German Embassy at Washington addressed to the people of the 
United States through the newspapers, but only for the pur- 
pose of pointing out that no warning that an unlawful and 
inhumane act will be committed can possibly be accepted as 
an excuse or palliation for that act or as an abatement of 
the responsibility for its commission." (Foreign Relations, U. S., 
1915, Supplement, p. 394.) 



RETALIATION AND NEUTRALS 129 

The warning to which reference was made above is 
as follows and appeared in New York papers as an ad- 
vertisement on May 1, 1915, the advertised sailing date 
of the Lusitania : 

"Travelers intending to embark on the Atlantic voyage are 
reminded that a state of war exists between Germany and her 
allies and Great Britain and her allies ; that the zone of war 
includes the waters adjacent to the British Isles ; that, in ac- 
cordance with formal notice given by the Imperial German 
Government, vessels flying the flag of Great Britain, or of any 
of her allies, are liable to destruction in those waters and that 
travelers sailing in the war zone on ships of Great Britain or 
her allies do so at their own risk. 

Imperial German Embassy, 

Washington, D. C. 

The note of May 3, 1915, closes with the statement: 

"Expressions of regret and offers of reparation in case of the 
destruction of neutral ships sunk by mistake, while they may 
satisfy international obligations, if no loss of life results, cannot 
justify or excuse a practice, the natural and necessary effect 
of which is to subject neutral nations and neutral persons to 
new and immeasurable risks. 

"The Imperial German Government will not expect the Gov- 
ernment of the United States to omit any word or any act neces- 
sary to the performance of its sacred duty of maintaining the 
rights of the United States and its citizens and of safeguarding 
their free exercise and enjoyment." (Foreign Relations, U. S., 
1915, Supplement, p. 396.) 

Retaliation and neutral passengers. — It has been com- 
mon to affirm that neutrals are liable to incidental con- 
sequences of retaliatory acts aimed by one belligerent 
against another. Acts of a retaliatory character may 
not, however, be directed toward a neutral with the 
hope of incidental injury to a belligerent. 

In a note to the Secretary of State the German Am- 
bassador in 1916, after the establishing of the war zone 
about Great Britain, it Avas explained that : 

"The German submarine war against England's commerce at 
sea, as announced on February 1, 1915, is conducted in retalia- 
tion of England's inhuman war against Germany's commercial 
and industrial life. It is generally recognized as justifiable that 
retaliation may be employed against acts committed in contra- 
vention of the law of nations. Germany is enacting such retalia- 



130 NEUTRALITY, 1914-1936 

tion because it is England's endeavor to cut off all imports from 
Germany by preventing even legal commerce of the neutrals 
with her and thereby subjecting the German population to 
starvation. In answer to these acts Germany is making efforts 
to destroy England's commerce at sea, at least as far as it is 
carried on by enemy vessels. Germany has notwithstanding 
limited her submarine warfare, because of her long-standing 
friendship with the United States and because by the sinking of 
the Lusitonia, which caused the death of citizens of the United 
States, the German retaliation affected neutrals which was not 
the intention, as retaliation should be confined to enemy subjects. 
"The Imperial German Government having subsequent to the 
sinking of the LuHtemia issued to its naval officers the new 
instructions which are now prevailing, expresses profound regret 
that citizens of the United States suffered by that event and, 
recognizing its liability therefor, stands ready to make reparation 
for the life of the citizens of the United States who were lost, 
by the pavment of a suitable indemnity." (Foreign Relations, 
U. S., 191G Supplement, p. 171.) 

In a telegram of July 21, 1915. the American Ambassa- 
dor in Germany to the Secretary of State referred to 
giving advance notice of the sailing of steamers from the 
United States. 

"In order that such advance notification may take place in all 
- with certainty, the schedule of the American steamer must 
be made known some weeks before the arrival of the ship in the 
war zone. It would be best if the notification were made early 
enough to have the German submarines acquainted with the 
name and schedule of the steamer one month before the arrival 
of the steamer in the war zone. Such an early notification can 
scarcely present insuperable difficulties, as the sailings of the 
steamers making regular journeys are generally fixed for a very 
long period in advance. 

Gerard." 
(Ibid., 1915 Supplement, p. 482.) 

In a reply of July 23, the Secretary of State said, 

"Department has made arrangements with the customs collector 
at port of New York, through Department of Commerce, to be 
notified immediately upon the departure of American passenger 
steamers, and will forward such information to you at once. 
Department suggests that you make arrangements to telephone 
this information direct to the German Admiralty, thus saving 
time. Department is also sending you by mail the advertised 
schedule of sailing of these ships which, however, may be subject 
to change." (Ibid., p. 484.) 

Restriction on Act of February 29, 1936. — The Joint 

Resolution of February 29, 1936, in regard to the embargo 



INTERPRETATIONS OF ACT OF 193G 131 

of arms, ammunition, and implements of war has not been 
interpreted in all its applications. Questions have been 
raised as to whether it applies in a civil strife. 

Acting Secretary of State, Mr. William Phillips, on 
August 7, 1936, explained the attitude of the 
Government. 

"While I realize that all of our officers have fully appreciated 
the necessity for maintaining a completely impartial attitude 
with regard to the disturbances in Spain, and that such an atti- 
tude has at all times been maintained by them, it may be well 
for them to have a summing up of what this Government's posi- 
tion thus far has been and will continue to be. 

"It is clear that our Neutrality Law with respect to embargo 
of arms, ammunitions and implements of war has no application 
in the present situation, since that applies only in the event of 
war between or amour/ nations. On the other hand, in internal 
affairs in other countries, either in time of peace or in the event 
of civil strife, this Government will, of course, scrupulously re- 
frain from any interference whatsoever in the unfortunate 
Spanish situation. We believe that American citizens, both at 
home and abroad, are patriotically observing this well-recognized 
American policy." (Press Releases, Department of State, vol. XV, 
p. 152.) 

Later in correspondence with manufacturers interested 
iu the exportation of arms and ammunition to Spain it 
was further stated by the Department of State : 

"In reply to your inquiry, I beg to say that the attitude and 
policy of this Government relative to the question of interven- 
tion in the affairs of other sovereign nations has been well known 
especially since the conclusion of the Montevideo Treaty of 1933. 

"For your further information, I enclose a copy of a circular 
telegraphic instruction which was recently sent to certain con- 
sular representatives in Europe and which has not been made 
public up to the present. 

"I desire to call especial attention to the reference therein to 
our neutrality laws and to the fact that they have no applica- 
tion in the present Spanish situation, since they apply only in 
the event of war between or among nations. 

"Furthermore, I invite your attention with equal force to the 
reference, in the same circular instruction, to this Government's 
well established policy of non-interference with internal affairs 
in other countries, as well as the statement that this Government 
will, of course, scrupulously refrain from any interference what- 
soever in the unfortunate Spanish situation. At the same time 
the Department expressed the opinion that American citizens, 
both at home and abroad, are patriotically observing this 
, recognized American policy."' (Ibid., p. 177.) 



232 NEUTRALITY. 1914-1936 

Spanish attitude on non-intervention, 1936.— -The first 
delegate of Spain, M. Alvarez del Vayo, in the sixth 
plenary meeting of the Assembly of the League of Na- 
tions, September 25, 1936, set forth at length the attitude 
-of the established government of Spain upon the policy 
of restriction by foreign states of export of war mate- 
rial to Spain. The central paragraphs of this address 
to the Assembly were as follows : 

"The policy of non-intervention! I am speaking here before 
an assembly of statesmen, of representatives of Governments, on 
whose shoulders rests the responsibility for well-being and order- 
in their respective countries. Who among you could fail to 
understand why it is that we, the men responsible for the future 
of Spain, for the future of the Spanish people, the whole Spanish 
people, must perforce regard so-called non-intervention as a policy 
of intervention detrimental to the constitutional and responsible 
Government? Who among you could fail to recognize that we 
cannot allow ourselves to be placed on the same footing as those 
who, breaking their solemn oath to the Republic, have risen in 
arms to destroy the constitutional liberty of our country? 

"Who, among the statesmen present in this Assembly, could 
accept the right of generals, who have taken their oath to the 
Constitution, to attempt to overthrow that Constitution by bring- 
ing into the country thousands of foreign troops from another 
continent? 

"I acknowledge the noble and generous purpose that actuated 
the proposal for non-intervention. But I must also, and with 
deep bitterness, point to its disastrous results, disastrous both to 
my own country and to the future of international cooperation. 
The legal monstrosity of the formula of non-intervention is mani- 
fest. That formula, as I have said, placed on the same footing 
the lawful Government of my country and the rebels, whom any 
Government worthy of the name is not only entitled but bound to 
suppress and punish. From the juridical point of view, non- 
intervention, as applied to Spain, represents an innovation in the 
traditional rules of international law, for it means withholding 
means of action from a lawful Government 

"But if we examine the actual way in which the formula 
of non-intervention has been applied and the results that have 
ensued, can we still call it 'non-intervention'? Non-intervention 
should consist wholly in ignoring the internal situation of a 
county and in retaining the full juridical and practical validity 
of the commercial agreements previously concluded. 

"We would accept a strict policy of non-intervention. We have 
asked no one to intervene or to help. But when the normal 
commercial relations with Spain are suddenly interrupted, when 
the export of war material for the lawful Government suddenly 
stops, when contracts concluded with the Spanish Government 
before the rebellion are cancelled, then we must affirm once again 



resume 133 

that this policy of non-intervention has been applied solely to 
the detriment of the lawful Government and, consequently, to the 
advantage of the rebels. 

"To undertake not to authorise the sending of war material 
to rebels who have risen against a lawful and recognised 
friendly Government — that is to say, to undertake not to engage 
in a disguised form of attack against a lawful Government — 
merely shows to what depths we have sunk in carrying out 
international obligations. Such an undertaking does not deprive 
the rebels of anything they could legitimately have obtained; it 
involves no more than a promise not to violate one of the most 
elementary obligations. 

"On the other hand, to prohibit the export of war materials 
to a lawful Government is to deprive it of the essential means 
of maintaining law and order within its territory, to say nothing 
of the blow struck at normal trade relations through a ban on 
the purchase of war materials by a lawful Government. Hither- 
to, it has been unanimously recognised that such transactions 
were part of the normal trade relations between countries. 

"In practice, the so-called policy of non-intervention amounts 
to a direct and effective intervention on behalf of the rebels." 
(League of Nations Official Journal, Spec. Supplement No. 155, 
Records of the Seventeenth Ordinary Session of the Assembly. 
[Sixth Plenary Meeting. Sept. 25, 1986], p. 49.) 

League of Nations discussion. — The first delegate, M. 

Litvinoff, of the U. S. S. R., speaking in the seventeenth 

ordinary session of the Assembly, September 28, 1936, 

did not regard neutrality as a safe defence under the 

existing conditions. He said: 

"I have not the slightest doubt that even the most politically 
inexperienced reader of newspapers knows which and how many 
are the countries whose aggressiveness makes them dangerous, 
if he is only familiar with the speeches and writings of the 
rulers of those countries. There are also some countries which 
strive to seek salvation in neutrality. If they really believe that 
it would be sufficient for them to write the word 'neutrality' on 
their frontiers, there to arrest the flames of war, and if they 
have forgotten the recent lessons of history as to breaches of 
even internationally recognized neutralities, that is their affair. 
We have the right, at least, to ask them already to observe their 
neutrality to-day, when some are preparing plans of aggression 
and others plans for self-defence. Unfortunately, they are often 
already placing their neutrality at the service of the forces of 
aggression." {Ibid. [Eighth Plenary Meeting. Sept. 28, 1936], 
p. 61.) 

Resume. — On many of the matters which were in 1914 
considered as unquestionably within the sphere of neu- 
tral rights, the United States took positive positions. 



234 NEUTRALITY, 1914-1936 

The United States had even announced that it would 
act as the "champion of neutrality." A long series of 
notes between the belligerents and the United States set 
forth many of the doctrines of neutrality for which the 
United States affirmed support. This verbal support 
acted as a deterrent upon the belligerents for a short 
time only, and disregard of what had formerly been con- 
sidered neutral rights became more and more common, 
though notes were exchanged after the event. The re- 
plies to the notes of the United States to the belligerents 
seem to have been deliberately postponed in some cases 
and before the replies had been received, new events 
changed conditions. 

In these contentions from August 4, 1914, to April 6, 
1917, the United States often cited the earlier principles 
and the precedents of neutrality cases. The Department 
of State called attention to the international law of neu- 
trality and demanded that it be respected. The conven- 
tions adopted at The Hague in 1907 were cited as show- 
ing the rights and obligations of neutrals. 

In general, the attitude had been that in time of war 
neutrals should be inconvenienced as little as possible, 
and if states decided to go to war, the burdens of the 
war should rest upon the belligerents. 

The determination as to whether there was a state 
of war was in accord with the Hague Convention III 
of 1907, Article 1, to rest upon the belligerent, and in 
accord with Article 2 should not take effect as regards 
neutrals "until after the receipt of a notification" 
though in case of doubt, if the fact was clearly known, 
absence of notification would not void the effect of the 
existence of war. 

The neutral was not presumed to act upon the hy- 
pothesis that a state of war existed prior to the declara- 
tion. The preamble of Convention III had specifically 



conclusion 135 

said that it was "important for the maintenance of 
pacific relations that hostilities should not commence 
without previous warning." In the arguments in sup- 
port of this Convention it was urged that without such 
a Convention the effects of the war would be thrown 
back upon the time of peace, and uncertainty as to the 
time when war commences would again disturb relations 
and introduce the uncertainty that had existed for two 
hundred years before. 

It was also maintained by the United States that the 
rights and obligations of the neutrals should be those 
generally accepted under international law in August 
1914. The statement as to many of these was embodied 
in the neutrality proclamation of the United States of 
August 4, 1914. 

The Joint Eesolutions of August 31, 1935, together 
with the extensions and amendments of February 29, 
1936, placed upon the United States obligations beyond 
those of international law in regard to the control of 
the sale and export of war material, financial transac- 
tions, submarines, travel of nationals, etc. 

conclusion 

From August 4, 1914, to April 6, 1917, the United 
States, as a neutral state, followed its long-established 
neutrality policy* which was in general accord with ac- 
cepted international law. 

The Joint Resolution of February 29, 1936, embodied 
a nationalistic policy in many respects divergent from 
the prior policy of the United States and from the gen- 
erally accepted doctrines of international law. 

The change in 1935-36 to a doctrine for the most 
part nationalistic has placed nationals of the United 
States under restrictions beyond those imposed by inter- 
national law. 



INDEX 

Page 

Aerial warfare, restrictions on 39 

Aggressor 90 

Air, freedom of the 44 

Aircraft: 

analogy of, to submarines 66 

attached to vessel 79 

belligerent, in neutral jurisdiction 98 

dropping of bombs by 31 

effect on, on conduct of war 39 

in distress 73, 80 

in neutral jurisdiction 75, 80, 85 

internment of 35, 74, 80, 98 

personnel of 79 

rules as to 44, 75 

United States, over Mexico, 1919 72 

visit by 35, 63 ff., 65,67 

Aircraft carriers 74 

Air power, use of, in war 38 

Anna Maria, The, 1817 62 

Armed merchant vessels 58 

Armed Neutralities, 1790 and 1800 93 

Arms and munitions of war: 

exportation of 99, 109, 117 

to Spain, 1936 131 

Geneva Convention of 1925 as to 113 

importation of, into China 112 

neutral trade in, 1915 107 

sale of 89, 103, 114 

"At their own risk" 116, 129 

Balloons, discharge of projectiles from 38, 40. 41, 42 

Base of operations 86 

Belligerency: 

and political revolt „ 3, 4 

recognition of 3, 22 

Belligerent rights 53, 85, 91 

Belligerent troops, in neutral territory 97 

Belligerent vessel: 

in neutral ports 24, 97, 88 

travel of neutrals on 116, 128 

Belligerents, restriction on aid to 89 

Blockage, of insurgent ports 8 

1820—37 10 137 



138 INDEX 

Bolivia: Page 

recognition of provisional government of, 1899 17 

recognition de facto 10, 11 

war with Paraguay, 1933 94 

Brazil: 

Neutrality decree, 1933 94 

Rules of neutrality, 1933 95 

Brussels protocol, 1908 111 

Bullets, expanding 40 

Cargo, destination of •_ 53 

Carranza, General 21 

Chaco arms embargo, 1934 114 

China, importation of arms into, 1919 112 

Civil strife, Convention concerning rights and duties of 

states in the event of, Habana, 1928 6 

Civil war, recognition of the existence of 7 

Clearance, restrictions on 105 

Closure of ports 28 

Coaling 88 

Collective action 11, 90, 112 

Colombia: attitude toward insurgents, 1885 19 

Commission of jurists, 1923: 

as to internment of belligerent aircraft 74 

as to use of radio 78 

as to visit and search by aircraft 63, 66, 68 

Consul of Spain v. The Conception, 1819 7 

Continuous voyage 102 

Contraband 47, 53, 85, 89, 95, 101 

conditional r 56, 57, 101 

neutral trade in 99, 104, 109, 110 

Conversion 59 

Costa Rica: 

recall of recognition of 11 

strained relations of, with Panama 13 

Crozier, General 40 

Declaration of London, 1909 46, 58, 95 

Declaration of Paris, 1856 58, 83, 95 

Detention, of ships 50, 55, 76 

Deviation of vessels 79 

by aircraft 65, 69 

Spaight on 70 

Diversion: 

of neutral cargoes 45 



INDEX 139 

Diversion — Continued. 

of vessels: Page 

by aircraft 69 

German Prize Ordinance 54 

Japanese regulations 50 

Dominican Republic 17, 23, 24 

Economic sanctions 92 

Egypt, British protectorate 21 

Embargo on arms 100, 108 

United States 114, 117, 120 

Enlistment, in neutral territory 86, 96 

Ethiopia, war with Italy : 118 

Fish, Secretary, as to recognition de facto 16 

Fitting out or arming 87, 97 

Fordney, Joseph W., case of the 55 

Fueling 88,96 

Geneva Convention, 1925 113 

Germany: 

Prize code, 1916 57 

Prize ordinance, 1909 57 

Warning as to Lusitania 129 

Glitra, the 46 

Great Britain: 

as to blockade of insurgents 8 

Interference with American shipping 45, 46, 49, 102 

Grey, Sir Edward, as to British policies, 1914-18 48 

Hague conference: 

1899 40 

1907 42 

Hague Convention: 

III, 1907 134 

V, 1907 78,79 

Hall, J. A., as to visit and search 53 

Hall, W. E., as to resistance to search 59 

Holland, Sir Thomas 60 

Hospital ships 97 

Hull, Secretary: 

as to American trade with belligerents 116 

as to U. S. embargo on arms 120 

Insurgency: 

admission of existence of 5 

blockade and recognition of 8 

laws of war and 32 

recognition of 3, 32 



140 INDEX 

Insurgency — Continued. Page 

status of 6 

Insurgent vessels, as pirates 18 

Insurgents: 

as pirates 2 

blockade of 8 

seizure by 18 

Internment: 

of aircraft 35, 74, 80, 98 

of persons 97, 98 

Intervention, non 132 

Italo-Ethiopian war 92, 118 

Jellicoe, Sir John 51 

Kane, U. S. destroyer 31 

Kellogg-Briand pact, 1928 93 

Liberia, civil strife in 24 

Lieber's Code (General Orders 100) 37 

Litvinoff, M., on neutrality 133 

Loans. (See War loans.) 

London Naval Conference, 1930 75 

London Naval Treaty, 1930, as to submarines 43, 62 

Loubet award 13 

Lusitania, the 127, 129, 130 

Mandated areas, traffic in arms and 113 

Maria, the, 1799 60 

Maritime Neutrality, convention on, Habana, 1928 93,95 

Merchant vessels 

and aircraft 66 

armed for defense 57 

British interference with 46 

sinking of 75, 61 

treatment of, by submarines 43 

visit and search: 

by aircraft 35, 63, 66, 68 

escape from 61 

resistance to 57 ff. 

Mexico 11, 20 

Moore, John Bassett, as to visit and search 68 

Netherlands American Steam Navigation Co. v. H. M. 

Procurator General, 1925 77 

Neutral cargoes 45, 46 

Neutral commerce: 

Brazilian decree as to, 1933 95 

in war materials 99, 106, 107 



INDEX 141 

Neutral commerce — Continued. p age 

interference with 44 ff. 

Pinckney, Marshall, and Gferry, as to, 1798 85 

Spaight as to future of 70 

U. S. attitude toward, 1935 121 

Neutral destination 45 

Neutral jurisdiction: 

aircraft in 74, 75, 80, 85 

arming or equipping of vessels in 84 

Neutral persons 91, 129 

Neutral ports: 

belligerent use of 97 

closure of 28 

repairs in 97 

Neutral prize sinking of 60 

Neutral property 60 

Neutral rights 84, 91, 93 

U. S. championing of 51, 134 

Neutral shipping, treatment of, 1914 48 

Neutral territory: 

belligerent aircraft in 74,98 

enlistment in 86, 96 

U. S. Penal Code, 1909, as to 86 

wireless stations of belligerents in 79 

Neutral territorial waters 74, 87 

Neutral travel, on belligerent ships 116, 128 

Neutrality: 

1914-36 82-135 

abandonment of 91 

and civil war 8 

Brazilian attitude toward, 1 933 95,96 

changing attitudes on 92-3 

domestic regulation of 82 

in war between Bolivia and Paraguay 94 

U. S. attitude toward 51, 83, 134 

Neutrality laws 98 

Neutrality proclamation: 

Brazil, 1933 94 

U. S., 1914 85 

Nicaragua 27 

Non-intervention, Spanish situation and 132 

Oetjen v. Central Leather Co., 1918 29 

Page, Walter Hines, as to British policy in World War 48 



142 INDEX 

Panama: Page 

strained relations with Costa Rica 13 

U. S. recognition de facto of 17 

Panama Canal Zone, use of radio in World War 79 

Paraguay: 

recognition of 11 

war with Bolivia, 1933 94 

Passports 127 

Peru: 

recognition of 21 

U. S. convention with 84 

Petroleum 103 

Phillips, William, as to Spanish situation, 1936 131 

Pirates 2, 8, 18, 19 

"Place of safety" 61, 62 

Political revolt and belligerency 4 

Ports: 

closure of 28 

insurgent 33 

Portugal, recognition of 20 

Private property 30 

Privateering 83 

"Proceed as directed" 71, 79 

Protectorate, over Egypt 21 

Radio, in war 78, 79 

Recognition: 

legitimacy of new governments 3, 14, 16, 22 

by concurrent action 10 

collective recall of 11 

de facto 9, 16,20 

dejure 20, 29 

joint delay in 11 

retroactive 29 

use of term 14 

(See also Belligerency, recognition of.) 

Renault, L 41 

Repairs, in neutral ports 88, 96 

Retaliation 76, 129 

Revolution, right of 2 

Revolutionary government, status of 29 

Richmond, Admiral 75 

Rubber 104 

Russia, U. S. recognition of Kerensky government, 1917__ 28 
(See also U. S. S. R.) 



INDEX 143 

Page 

Russo-Japanese war__ . 41 

St. Germain-en- Lay e, convention of, 1919 111 

Salvador, The, case of 5 

Sapphire, The, case of 15 

Seizure 59, 77 

of goods 55 

Sommelsdijk, The, case of 77 

Spaight, J. M.: 

as to aircraft and merchant vessels 67 

as to aircraft and neutral jurisdiction 75 

as to deviation 70 

Spain: 

non-intervention in 132 

recognition of, 1870 16 

revolution in, 1936 30,131 

Spanish Instructions, 1898 58 

Stone, Senator, as to neutral trade 100 ff . 

Submarines: 

and aircraft 75 

London Naval Treaty, 1930, as to 62 

rules as to 43 

Summons 70, 79, 71 

Three Friends, case of 4, 5 

Traffic in arms, and mandated territory 113 

Transport of belligerent soldiers 89 

Travel: 

government restrictions on 126 

in time of war 116, 121, 127, 128 

Treaty of Versailles 14, 22 

Twenty-four hour rule 28, 87 

United States: 

Act, 1912, as to export of arms 99 

Act, 1917, as to export of arms 110 

as champion of neutrality 51, 134 

as mediator in Panama-Costa Rica dispute 14 

as to declaration of war by Panama, 1921 13 

attitude toward Spanish insurgents, 1936 30, 131 

Chaco arms embargo 114 

circular as to neutral trade 99 

commerce, British interference with 45, 47, 49, 102 

Joint Resolution, February 29, 1936 82, 93, 126, 130, 136 

Neutrality Act, 1794 83 

Penal Code, 1909 86 



144 INDEX 

United States — Continued. Page 

policy as to recognition de facto 16 

proclamation, as to export of arms, 1935 115 

proclamation, as to export of arms, 1936 117 

Resolution as to clearance of vessels 105 

Russian recognition of, 1809 15 

United States v. Curtis Wright Export Corporation et al__ 115 

United States v. Palmer, 1818 7 

U. S. S. R., recognition of 15, 29 

Van Dyke, Henry 45 

Vessels: 

bringing into port 49, 50, 52, 53, 78, 63 

sending into port 63 

seizure by insurgents of 19 

Visit and search: 

at sea 48, 77, 51, 70 

British attitude toward, 1916__ 51 

by aircraft 35, 63, 66, 68 

by submarine 43 

effect of modern conditions on 51 

in port 49, 51, 52, 77 

practices during American civil war ,. 49 

resistance to 57 ff. 

right of 47,53 

U. S. attitude toward, 1916 60 

Visite sur place. (See Visit and search, at sea.) 
War: 

Bolivia and Paraguay, 1933 95 

declaration of 32, 135 

Panama and 13 

airpower and conduct of 38, 39 

existence of 134 

insurgency and laws of 32 

laws of 32, 37, 38, 40 

War loans 122, 123, 124, 126 

War material, export of 96, 106, 111, 116, 132 

(See also Arms and munition of war.) 

War profits 92 

Washington Treaty, 1922 66 

Wharton, Francis, as to insurgents 18 

White award 13 

Wilson, Woodrow 91 

Yogoslavia, recognition of 26 

o